Opinion
14689-22
11-21-2023
JAMES G. BURKHART & LINDA S. BURKHART, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Kathleen Kerrigan Chief Judge
On October 5 and 30, 2023, petitioner's counsel's Motion to Withdraw as Counsel and First Amended Motion to Withdraw as Counsel, informed the Court that, after the petition to commence this case was filed, petitioner James G. Burkhart had become incompetent and petitioner Linda S. Burkhart had died. Petitioner's counsel's filings suggested that Russell Gordon is the appropriate person at this juncture to continue to prosecute this case on behalf of petitioners.
Any action in this Court must be prosecuted by a proper party. The Tax Court, unlike the Internal Revenue Service, does not recognize powers of attorney. With respect to an incompetent party, Rule 60(d) of the Tax Court Rules of Practice and Procedure provides that if an incompetent person has a legal representative, such as a guardian, conservator, or other similar fiduciary, that legal representative may prosecute a case in this Court on behalf of the incompetent person. Alternatively, an incompetent or incapacitated person who does not have a duly appointed legal representative may act by a next friend. Campos v. Commissioner, T.C. Memo 2003-193. In that connection, an appropriate Motion to be Recognized as Next Friend may be filed. Any such motion should set forth that (1) petitioner is incompetent and cannot prosecute a case without assistance, (2) the person seeking to be recognized as next friend for petitioner will represent petitioner's best interests, and (3) the person seeking to be recognized as next friend has a significant relationship with petitioner. A doctor's letter regarding petitioner's disability and inability to conduct petitioner's own business and financial affairs should also be attached to any Motion to be Recognized as Next Friend.
With respect to a deceased party, it is well settled that the Court's jurisdiction over a case continues unimpaired by the death of a petitioner. A decedent's estate generally may be represented by someone acting in a fiduciary capacity, such as an executor, administrator, or personal representative of the decedent's estate. Even if there has been no administration of a deceased petitioner's estate, this Court may formulate an appropriate procedure to bring such a case to a close, including affording a decedent's heirs at law the opportunity to take whatever action may be necessary to protect their interests. Nordstrom v. Commissioner, 50 T.C. 30 (1968). Whether an individual has capacity to be substituted as a party is determined under local law. Rule 60(c), Tax Court Rules of Practice and Procedure; Fehrs v. Commissioner, 65 T.C. 346, 349 (1975. Rule 60(c) provides that the capacity of a fiduciary or other representative to litigate in this Court shall be determined in accordance with the law of the jurisdiction from which such person's authority is derived. This may require any fiduciary to have been duly appointed by a court of competent jurisdiction in order to represent a decedent's estate.
Upon due consideration of the foregoing, it is
ORDERED that the caption of this case is amended to read: "James G. Burkhart and Linda S. Burkhart, Deceased, Petitioners v. Commissioner of Internal Revenue, Respondent". It is further
ORDERED that, with respect to petitioner James G. Burkhart, on or before December 22, 2023, Russell Gordon and respondent shall confer regarding: (1) whether petitioner is an incompetent or incapacitated person, (2) whether petitioner has a duly appointed legal representative, such as a guardian, conservator, or other similar fiduciary and, if so, whether that individual will file an appropriate Motion to Substitute Parties and Change Caption (to which shall be attached the order from a court of competent jurisdiction appointing such fiduciary), and (3) if petitioner has no duly appointed fiduciary, whether Mr. Gordon or another individual will file an appropriate Motion to be Recognized as Next Friend, as discussed above. It is further
ORDERED that, on or before December 22, 2023, Russell Gordon and respondent shall confer regarding: (1) whether a probate proceeding has been commenced with respect to the estate of Linda S. Burkhart (decedent); (2) if such a probate proceeding has been commenced, whether an executor, administrator, or other fiduciary has been duly appointed for decedent's estate by a court of competent jurisdiction and, if so, the name and address of such duly appointed fiduciary; (3) whether any duly appointed fiduciary of the decedent's estate intends to prosecute this case on the 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 the decedent's estate); and (4) if no probate proceeding has been commenced with respect to the decedent's estate, the names and addresses of the decedent's heirs at law. It is further
ORDERED that, on or before January 12, 2024, 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 two preceding ordered paragraphs. Respondent shall attach to his Status Report a copy of the death certificate for petitioner Linda S. Burkhart. It is further
ORDERED that, in addition to regular service, the Clerk of the Court shall serve this Order on Russell Gordon at the address listed for him in the First Amended Motion to Withdraw as Counsel, filed October 30, 2023.