Opinion
5457-19
06-08-2023
DONNEY R. CARRUTHERS, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER TO SHOW CAUSE
Emin Toro Judge.
On May 11, 2023, respondent filed a Motion to Dismiss for Lack of Prosecution (Doc. 30). Therein, respondent states that petitioner Donney R. Carruthers "died at Memphis, Tennessee on September 10, 2020, which was after the petition in this case was filed." By Order served May 17, 2023, among other things, respondent's Motion was calendared for hearing during the Court's June 5, 2023, Memphis, Tennessee, trial session.
On May 30, 2023, respondent filed a Status Report (Doc. 32) informing the Court that "[r]espondent has not been able to obtain a copy of petitioner's death certificate." Respondent also identified seven possible heirs at law of petitioner in the Status Report, along with their contact information.
On June 5, 2023, this case was called from the calendar for the trial session of the Court at Memphis, Tennessee. There was no appearance on behalf of petitioner. Counsel for respondent appeared and was heard.
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).
In accordance with the principles established in Nordstrom v. Commissioner, 50 T.C. 30 (1968), this Court must give proper notice of this proceeding to the heirs at law of the decedent and afford them an opportunity to take whatever action may be necessary to protect their interests.
Upon due consideration, and for cause more fully appearing in the transcript of the proceeding, it is hereby
ORDERED that the caption of this case is amended to read: "Donney R. Carruthers, Deceased, Petitioner v. Commissioner of Internal Revenue, Respondent." It is further
ORDERED that, on or before July 5, 2023, petitioner's heirs at law identified in respondent's May 30, 2023, Status Report shall show cause why this case should not be dismissed for lack of prosecution. It is further
ORDERED that respondent's Motion to Dismiss for Lack of Prosecution is held in abeyance. It is further
ORDERED that, in addition to regular service, the Clerk of the Court shall serve a copy of this Order on petitioner's heirs at law at their addresses listed in respondent's May 30, 2023, Status Report. It is further
ORDERED that, on or before July 5, 2023, respondent shall provide to the Court a copy of Donney R. Carruthers's death certificate. It is further
ORDERED that jurisdiction of this case is retained by the undersigned judge.