Opinion
7384-15L
02-03-2023
WILLIAM WALLER, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER TO SHOW CAUSE
Emin Toro, Judge.
This case is currently calendared for trial during the Court's May 1, 2023, Las Vegas, Nevada, trial session. On January 27, 2023, respondent filed a Motion to Dismiss for Lack of Prosecution (Doc. 30) as to petitioner who died after the filing of the Petition. Respondent moves that the case be dismissed for lack of prosecution and that the Court find in its order that the determinations set forth in the Notice of Determination Concerning Collection Action(s) Under Section 6230 and/or 6330 of the Internal Revenue Code issued to petitioner on February 12, 2015, for petitioner's income tax liabilities for the tax years 2003 through and including 2009, and upon which this case is based, are sustained in full.
In respondent's Motion, respondent asserts that: (1) subsequent to the filing of the Petition in this case, petitioner died on September 25, 2021, (2) "no representative or fiduciary is currently authorized to act on behalf of the estate of William Waller, deceased," and (3) the Probate Court Petition provides that the only known heirs are Teresa J. Bonifatto and William Waller, IV.
Included in Exhibit A attached to respondent's Motion is a redacted copy of a Certificate of Death issued on October 11, 2021, by the Madera County Department of Public Health indicating that petitioner died on September 25, 2021, and was survived by spouse Teresa J. Bonifatto.
The Court may dismiss a case at any time and enter a decision against the taxpayer for failure properly to prosecute their case, failure to comply with the Rules of this Court or any order of the Court, or for any cause which the Court deems sufficient. Rule 123(b); Stearman v. Commissioner, 436 F.3d 533, 535-537 (5th Cir. 2006), aff'g T.C. Memo. 2005-39; Bauer v. Commissioner, 97 F.3d 45, 48-49 (4th Cir. 1996); Edelson v. Commissioner, 829 F.2d 828, 831 (9th Cir. 1987), aff'g T.C. Memo. 1986-223. When a petitioner dies, the Court generally will order that a representative or successor be substituted as the proper party. Rule 63(a). In the event that no representative of a decedent comes forward to prosecute the decedent's case before this Court, the procedural means for bringing the case to a close is the Commissioner's filing of a motion to dismiss for failure to properly prosecute. See Nordstrom v. Commissioner, 50 T.C. 30, 32 (1968); see also Wyler v. Commissioner, T.C. Memo. 1990-285, 1990 WL 74410, at *3 (1990).
Upon due consideration, it is hereby
ORDERED that the caption of this case is amended to read: "William Waller, Deceased, Petitioner v. Commissioner of Internal Revenue, Respondent." It is further
ORDERED that, on or before March 3, 2023, petitioner's above-referenced heirs-at-law shall show cause why this case should not be dismissed for lack of prosecution. It is further
ORDERED that, in addition to regular service, the Clerk of the Court shall serve a copy of this Order and a copy of respondent's Motion to Dismiss for Lack of Prosecution filed January 27, 2023, on petitioner's heirs-at-law at their addresses listed in respondent's Certificate of Service attached to the Motion to Dismiss for Lack of Prosecution.