Opinion
2069-22
11-06-2024
CLEVELAND DARRYL CARMINE, DECEASED, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER AND DECISION
Elizabeth A. Copeland, Judge.
On September 25, 2024, the Court ordered Annie Carmine, neé Annie Jones (Ms. Carmine), surviving spouse or domestic partner and heir-at-law of Cleveland Darryl Carmine, Deceased (Mr. Carmine), to show cause in writing, on or before October 15, 2024, why the Court should not grant the Commissioner's Motion to Dismiss for Lack of Prosecution (Motion) filed August 20, 2024. The Commissioner informed the Court that Ms. Carmine does not object to the Court granting the Motion, and that Mr. Carmine does not have any other known heirs-at-law.
The Court may dismiss a case at any time and enter a decision against the petitioner for failure to properly prosecute his 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), Tax Court Rules of Practice and Procedure; Bauer v. Commissioner, 97 F.3d 45, 48-49 (4th Cir. 1996); Stearman v. Commissioner, 436 F.3d 533, 535-37 (5th Cir. 2006), aff'g, T.C. Memo. 2005-39; 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), Tax Court Rules of Practice and Procedure. If no representative of the decedent comes forward to prosecute the decedent's case before this Court, the procedural means for bringing the case to a close is a motion to dismiss for failure to properly prosecute the case. See Nordstrom v. Commissioner, 50 T.C. 30, 32 (1968).
The Court has been informed that there is no representative or fiduciary willing to act on behalf of Mr. Carmine's Estate under New Jersey law. Consequently, the Court will dismiss this case for lack of prosecution.
Upon due consideration of the Commissioner's Motion, and for cause, it is
ORDERED that the Order to Show Cause, served September 25, 2024, is hereby made absolute. It is further
ORDERED that the Commissioner's Motion to Dismiss for Lack of Prosecution, filed August 20, 2024, is granted. It is further
ORDERED and DECIDED that there is a deficiency in income tax due from Mr. Carmine for the taxable year 2019 in the amount of $8,266.00 and no penalty due under I.R.C. § 6662(a) based on Respondent's concession. It is further
ORDERED that the Clerk of Court shall, in addition to regular service, serve a copy of this Order and Respondent's Motion to Dismiss for Lack of Prosecution, filed on August 20, 2024, on Petitioner's heir-at-law, Annie Carmine, at the address listed in paragraph nine (9) of Respondent's Motion to Dismiss for Lack of Prosecution.