Opinion
26011-22
07-03-2023
SANDRA J. ANDREW & BENJAMIN C. ANDREW, DECEASED, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Kathleen Kerrigan Chief Judge
The Petition filed to commence this case on December 14, 2022, seeks redetermination of a deficiency in petitioners' federal income tax for the taxable year 2020. Although the Petition indicates that petitioner Benjamin C. Andrew is deceased, no letters testamentary, letters of administration, or other probate court papers issued by a state court of competent jurisdiction appear to be attached to the Petition.
In a deficiency action, Rule 60(a) provides that the case shall be brought by the person against whom the Commissioner determined the deficiency or by a fiduciary entitled to institute a case on behalf of such person. The burden of proving that the Court has jurisdiction is on the taxpayer, and 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, this Court is without jurisdiction. See Fehrs v. Commissioner, 65 T.C. 346, 348-349 (1975). The capacity of a fiduciary or other representative to litigate in this Court is determined by state law. See Rule 60(c). Accordingly, when bringing a case on behalf of a deceased taxpayer, a fiduciary or other representative bears the burden of proving that he or she is entitled under state law to institute that case. See Rule 60(a), (c); see also Fehrs, 65 T.C. at 348-349; Sander v. Commissioner, T.C. Memo. 2022-103; Clifton v. Commissioner, T.C. Memo. 1981-493.
All Rule references are to the Tax Court Rules of Practice and Procedure.
Notwithstanding the foregoing, 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 that such ratification shall have the same effect as if the case had been properly brought by such party.
As noted above, the Petition indicates that petitioner Benjamin C. Andrew is deceased, but no letters testamentary, letters of administration, or other probate court papers issued by a state court of competent jurisdiction appear to be attached thereto. It is therefore not clear whether the Petition has been filed by a fiduciary or other representative entitled to institute a case on behalf of the decedent petitioner. Consequently, at this time it is not clear whether the Court has jurisdiction as to the decedent petitioner.
In consideration of the foregoing, it is
ORDERED that, at a reasonable date and time, but not later than August 4, 2023, the parties shall confer regarding the status of this case, including the following matters:
1. Whether the estate of the decedent Benjamin C. Andrew (decedent) has been or will be probated;
2. If such a probate proceeding has been commenced, whether an executor, administrator, or other fiduciary/representative has been appointed for the decedent's estate by a state court of competent jurisdiction (and, if so, the name and address of such person); and
3. If the decedent's estate has not been or will not be probated, the names and addresses of his heirs at law.
It is further
ORDERED that, on or before August 21, 2023, the parties shall file a joint report regarding the then-present status of this case and shall address therein each of the matters set forth in the preceding ordered paragraph. The parties shall attach to such report (1) a copy of the decedent's death certificate and (2) if an executor, administrator, or other fiduciary/representative has been appointed for the decedent's estate, a copy of the letters testamentary, letters of administration, or other probate court papers issued by a state court of competent jurisdiction appointing such person.