Opinion
28584-21
02-16-2022
IVAN CARDONA, DECEASED, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Maurice B. Foley Chief Judge
On August 23, 2021, Clara Martinez Cardona, the mother of Ivan Cardona, Deceased, timely filed the Petition to commence this case. The Petition seeks review of a Notice of Deficiency issued to decedent petitioner on May 19, 2021, with respect to his Federal income tax for the 2019 taxable year. Among other things, attached to the Petition is a copy of decedent petitioner's death certificate, indicating that he died on February 1, 2021, in Broward County, Florida. However, no letters testamentary or letters of administration are so attached, and the Petition appears to indicate that decedent petitioner may have died intestate.
In general, Rule 60(a) provides that a case shall be brought by the individual against whom a deficiency or liability has been asserted or by a fiduciary legally authorized 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). A decedent's estate generally may be represented by someone acting in a fiduciary capacity, such as an executor, administrator, or personal representative. See Rule 60(c).
All Rule references are to the Tax Court Rules of Practice and Procedure, which are available on the Court's website at www.ustaxcourt.gov/rules.html.
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, no letters testamentary or letters of administration are attached to the Petition, and it is not readily apparent whether this case, insofar as it may purport to be an appeal by or on behalf of Ivan Cardona, Deceased, or his estate, was filed by a fiduciary or personal representative duly appointed by a court of competent jurisdiction and legally entitled to institute such a case.
Upon due consideration of the foregoing, it is
ORDERED that respondent and Clara Martinez Cardona shall confer and, afterward, shall file, on or before April 18, 2022, a joint report regarding the then-present status of this case, including the following information: (1) whether the estate of Ivan Cardona has been or will be probated; (2) if the estate of Ivan Cardona is being probated, whether an executor, administrator, or other fiduciary has been duly appointed for the estate by a court of competent jurisdiction, as well as the name and address of such duly appointed fiduciary; (3) if the estate of Ivan Cardona has not been or will not be probated, the names and addresses of his heirs and whether any of them might be willing to serve as a fiduciary for his estate; and (4) if there is or will be any fiduciary duly authorized to represent the estate of Ivan Cardona, whether that individual intends to file a proper motion to substitute parties and change caption. It is further
ORDERED that, in addition to regular service, the Clerk of the Court shall serve a copy of this Order on Clara Martinez Cardona at the address listed for her in the Petition filed to commence this case.