Opinion
23895-22L
04-05-2023
ESTATE OF MARIA M. CASTILLO, DECEASED, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Kathleen Kerrigan Chief Judge.
On December 23, 2022, respondent filed a Motion to Dismiss for Lack of Jurisdiction (motion to dismiss) on the grounds that the petition in this case was not filed by the deceased petitioner or by someone legally authorized to represent petitioner's estate. On February 8, 2023, after conferring with Marcell Rocha, who filed the petition on behalf of petitioner, respondent filed a Status Report. In that status report, respondent states that: (1) while no probate proceeding had been commenced as of that date, Marcell Rocha was considering commencing a probate proceeding with respect to petitioner's estate, and (2) petitioner's heirs at law are Marcell Rocha, Patricia Guerra, Marisol Rocha, and Manuel Rocha. The parties were able to provide addresses for all the heirs at law except Manuel Rocha.
On March 13, 2023, Marcell Rocha filed a Letter, in which he states that no probate proceeding will be commenced as to petitioner's estate and he does not object to the granting of respondent's motion to dismiss. Thereafter, on April 3, 2023, Marcell Rocha and respondent filed a Status Report in which they confirmed that no probate estate for petitioner will be opened, and they requested that respondent's motion to dismiss be granted.
It is well settled that unless the petition is filed by the taxpayer or someone legally authorized to act on the taxpayer's behalf, we are without jurisdiction as to that taxpayer. Fehrs v. Commissioner, 65 T.C. 346, 348-349 (1975). However, in relevant part, Tax Court 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 such ratification shall have the same effect as if the case had been properly brought by such party." A decedent's estate may be represented by someone acting in a fiduciary capacity, such as an executor, administrator, or personal representative of the decedent's estate. Rule 60(c), Tax Court Rules of Practice and Procedure, provides that "the capacity of a fiduciary or other representative to litigate shall be determined in accordance with the law of the jurisdiction from which such person's authority is derived."
Upon due consideration, it is
ORDERED that the caption of this case is amended to read: "Maria M. Castillo, Deceased, Petitioner v. Commissioner of Internal Revenue, Respondent". It is further
ORDERED that, on or before April 28, 2023, Patricia Guerra and Marisol Rocha, shall each file an Objection, if any, to respondent's above-referenced motion to dismiss and, if any such objection is filed, shall set forth therein whether he or she intends to commence a probate proceeding for petitioner's estate and, if so, whether he or she will file in this case a proper Motion to Substitute Parties and Change Caption. Failure to file an objection may result in the granting of respondent's motion to dismiss. It is further
ORDERED that, in addition to regular service, the Clerk of the Court shall serve on Marcell Rocha, Patricia Guerra, and Marisol Rocha (at their addresses as set forth in respondent's Status Report, filed February 8, 2023) copies of this Order, along with copies of respondent's Motion to Dismiss for Lack of Jurisdiction.