Opinion
8865-23
08-04-2023
BARBARA M. STEWART, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Kathleen Kerrigan Chief Judge
On May 25, 2023, the petition to commence his case was filed on behalf of petitioner by Michael K. Stewart. The petition seeks review of a notice of deficiency issued for petitioner's 2020 tax year and indicates that petitioner was deceased at the time the petition was filed. On July 25, 2023, respondent filed a Motion to Dismiss for Lack of Jurisdiction on the grounds that the petition was not filed by the taxpayer or by someone lawfully authorized to represent the deceased petitioner (decedent) or the decedent's estate.
It is well settled that, unless the petition is filed by the taxpayer, or by someone lawfully authorized to act on the taxpayer's behalf, we are without jurisdiction as to that taxpayer. Fehrs v. Commissioner, 65 T.C. 346, 348-349 (1975). However, in relevant part, Tax Court Rule 60(a) provides that "A case timely brought shall not be dismissed on the ground that it is not properly brought on behalf of a party until a reasonable time has been allowed after objection for ratification by such party of the bringing of the case; and such ratification shall have the same effect as if the case had been properly brought by such party." A decedent's estate may be represented by someone acting in a fiduciary capacity, such as an executor, administrator, or personal representative of the decedent's estate. Rule 60(c), Tax Court Rules of Practice and Procedure, provides that "the capacity of a fiduciary or other representative to litigate shall be determined in accordance with the law of the jurisdiction from which such person's authority is derived."
Upon due consideration, it is
ORDERED that the caption of this case is amended to read: "Barbara M. Stewart, Deceased, Petitioner v. Commissioner of Internal Revenue, Respondent". It is further
ORDERED that, on or before September 4, 2023, Michael K. Stewart and respondent shall confer concerning the following matters: (1) whether a probate estate has been or will be opened with respect to decedent's estate; (2) if decedent's estate has been probated, the name and address of the court-appointed fiduciary of decedent's estate; (3) whether any fiduciary of decedent's estate intends to prosecute this case on decedent's behalf by filing an appropriate motion to substitute parties and change caption (to which should be attached relevant documentation supporting the individual's status as a fiduciary with legal capacity to represent decedent's estate); and (4) if decedent's estate has not been or will not be probated, the names and addresses of decedent's heirs at law. It is further
ORDERED that, on or before September 18, 2023, respondent shall file a status report concerning the then-current status of this case, including information about the above-referenced matters set forth in the ordered paragraph above. It is further
ORDERED that, in addition to regular service, the Clerk of the Court shall serve this Order on Michael K. Stewart at the address of record in this case. It is further
ORDERED that, pending the filing of the above-referenced status report, the Court will hold in abeyance respondent's Motion to Dismiss for Lack of Jurisdiction.