Opinion
17689-21
12-10-2021
Frances B. Sutthoff, Deceased Petitioner v. Commissioner of Internal Revenue Respondent
ORDER
Maurice B. Foley Chief Judge
On May 14, 2021, the petition to commence this case was filed on behalf of petitioner. The petition, which indicates that petitioner is deceased, seeks review of a notice of deficiency issued for petitioner's 2018 tax year. The petition is signed by Margaret Sutthoff, who represents that she is petitioner's daughter. On September 23, 2021, respondent filed a motion to dismiss for lack of jurisdiction. Respondent asserts in his motion that as the petition was filed by Margaret Sutthoff, who has not shown that she has been duly appointed by a court of competent jurisdiction to represent petitioner's estate, this Court lacks jurisdiction of this case.
By Order issued November 1, 2021, the Court directed respondent and Margaret Sutthoff to confer and afterward to file a joint status report concerning the then-current status of this case, including the following information: (1) whether Margaret Sutthoff objects to the granting of respondent's motion and, if so, the grounds for that objection, (2) whether the estate of Frances B. Sutthoff has been or will be probated, (3) if decedent's estate is being probated, whether an executor, administrator, or other fiduciary has been duly appointed for decedent's estate by a court of competent jurisdiction, as well as the name and address of such duly appointed fiduciary, (4) if decedent's estate has not been or will not be probated, the names and addresses of decedent's heirs and whether any of them might be willing to serve as a fiduciary for decedent's estate, and (5) if there is or will be any fiduciary duly authorized to represent decedent's estate, whether that individual intends to file a proper Motion To Substitute Parties and Change Caption.
On November 29, 2021, respondent filed a status report, stating therein that: (1) Margaret Sutthoff objects to the granting of respondent's motion to dismiss for lack of jurisdiction, (2) the estate of petitioner has not been and will not be probated and, thus, no fiduciary with the capacity to represent petitioner's estate before this Court has been appointed, and (3) petitioner's heirs at law include Margaret Sutthoff, Anne Sutthoff, Constance Kelly, Catherine Slaton, Elizabeth Weyer, and James Sutthoff.
As discussed in a previous Order of the Court, 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. 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 before this Court 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." Accordingly, decedent's heirs at law are advised that, if one or more of them wish to prosecute this case in this Court on petitioner's behalf, they will be required to have a fiduciary appointed by a court of competent jurisdiction to represent petitioner's estate.
Upon due consideration, it is
ORDERED that, on or before February 10, 2022, petitioner's above-referenced heirs at law shall file an objection, if any, to respondent's motion to dismiss for lack of jurisdiction. Any objection must include information regarding whether a fiduciary with the capacity to represent petitioner's estate has been appointed by 1 a court of competent jurisdiction and, if so, a copy of the letters testamentary, letters of administration, or other order indicating such appointment shall be attached to the objection. It is further
ORDERED that, in addition, to regular service, the Clerk of the Court shall serve a copy of this Order on petitioner's heirs at law at their addresses listed in respondent's status report filed November 29, 2021. 2