Opinion
1659-24S
07-02-2024
ELAINE F. THURSTON, DECEASED, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Kathleen Kerrigan Chief Judge
On January 18, 2024, the Petition in this case was filed on behalf of petitioner by Jan E. Thurston as "POA for Elaine F. Thurston". On July 2, 2024, respondent filed a Motion to Dismiss for Lack of Jurisdiction on the grounds that the Petition in this case was not filed by someone with the legal capacity to represent petitioner's estate before this Court.
Any action in this Court must be prosecuted by a proper party. The Tax Court does not recognize powers of attorney. 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). State law generally determines who has the capacity to be substituted as a party for a deceased person (decedent). Rule 60(c), Tax Court Rules of Practice and Procedure; Fehrs, 65 T.C. at 349 (1975). The appointment of a fiduciary, such as 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 a decedent's estate. Furthermore, 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."
To ensure an adequate opportunity to be heard notwithstanding a representation by respondent that there is no objection to the granting of the motion, it is
ORDERED that, on or before July 26, 2024, Jan E. Thurston shall file an Objection, if any, to respondent's Motion to Dismiss for Lack of Jurisdiction. Failure to file a timely objection may result in the granting of respondent's motion, dismissal of this case for lack of jurisdiction, and the IRS seeking payment of the determined amount(s). The Court will take appropriate action following the period for objection. It is further
ORDERED that, in addition to regular service, the Clerk of the Court shall serve this Order on Jan E. Thurston at the address listed in the Court's record.