Opinion
11127-20
09-14-2021
Albert F. Gerhardt, Deceased v. Commissioner of Internal Revenue Respondent and Gladys L. Gerhardt Petitioners
ORDER
Maurice B. Foley Chief Judge
Petitioner Albert F. Gerhardt died prior to the filing of the petition commencing this case. On November 16, 2020, respondent filed a Motion To Dismiss for Lack of Jurisdiction as to Petitioner Albert F. Gerhardt, Deceased, and Change Caption. On December 29, 2020, respondent filed a supplement to his motion. In the motion, as supplemented, respondent states that no probate estate had been opened for petitioner Albert F. Gerhardt; decedent's heirs are petitioner Gladys L. Gerhardt, Tim Gerhardt, Alan Gerhardt, Dick Gerhardt, and Jack Gerhardt; and petitioner Gladys L. Gerhardt does not object to the granting of this motion. By order served February 3, 2021, the Court directed Tim Gerhardt, Alan Gerhardt, Dick Gerhardt, and Jack Gerhardt to file an objection, if any, to respondent's motion. To date, Tim Gerhardt, Alan Gerhardt, Dick Gerhardt, and Jack Gerhardt have failed to file an objection to respondent's 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 the 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 348-349.
Upon due consideration, it is
ORDERED that respondent's Motion To Dismiss for Lack of Jurisdiction as to Petitioner Albert F. Gerhardt, Deceased, and Change Caption, as supplemented, is granted in that so much of this case as relates to Albert F. Gerhardt is dismissed for lack of jurisdiction. It is further
ORDERED that the caption of this case is amended to read "Gladys L. Gerhardt, Petitioner v. Commissioner of Internal Revenue, Respondent".