Opinion
33969-21S
12-08-2022
JOSEPH DELGADO, DECEASED & RITA E. DELGADO, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Patrick J. Urda, Judge.
This case is currently calendared on the Court's San Francisco, California trial session, scheduled to begin January 23, 2023.
Petitioner Joseph Delgado died prior to the filing of the petition commencing this case. On December 6, 2022, the Commissioner filed a motion to dismiss for lack of jurisdiction as to Joseph Delgado, deceased, and to change caption. In the motion, the Commissioner states that petitioner Rita E. Delgado stated that no probate of petitioner Joseph Delgado's estate has been opened, no personal representative has been appointed, and that Joseph Delgado did not have a will or trust. Furthermore, the motion indicated that petitioner Rita E. Delgado does not object to the granting of the motion.
It is well settled that the Court's jurisdiction over a case continues unimpaired by the death of a petitioner. Nordstrom v. Commissioner, 50 T.C. 30, 32 (1968). Pursuant to Rule 63(a), Tax Court Rules of Practice and Procedure, when a petitioner dies, "the Court, on motion of a party or the decedent's successor or representative or on its own initiative, may order substitution of proper parties." State law generally determines who has the capacity to be substituted as a party for a decedent. Rule 60(c); Fehrs v. Commissioner, 65 T.C. 346, 349 (1975). Thus, the appointment of a personal representative, executor, or administrator by the appropriate State court having jurisdiction over the estate of the decedent is generally necessary to establish the capacity of a person to litigate on behalf of the estate. See Rule 60(c). It is well settled that, unless the petition is filed by the taxpayer, or someone lawfully authorized to act on the taxpayer's behalf, this Court is without jurisdiction. Fehrs v. Commissioner, 65 T.C. at 349-49.
Upon due consideration, it is
ORDERED that the Commissioner's motion to dismiss for lack of jurisdiction as to Joseph Delgado, deceased, and to change caption is granted in that so much of this case as it relates to Joseph Delgado is dismissed for lack of jurisdiction. It is further
ORDERED that the caption of this case is amended to read "Rita E. Delgado, Petitioner v. Commissioner of Internal Revenue, Respondent."