Opinion
11089-23S
10-10-2023
CRAIG J. CEBULSKIE, DECEASED, & MARY H. CEBULSKIE, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Kathleen Kerrigan Chief Judge.
On July 12, 2023, the petition to commence this case was filed by Mary H. Cebulskie. The petition seeks review of a notice of deficiency issued to petitioners for their 2020 tax year. On July 21, 2023, the Court issued an Order directing Craig J. Cebulskie to file a Ratification of Petition.
On September 11, 2023, Ms. Cebulskie filed a Status Report informing the Court that Craig J. Cebulskie (decedent) died before the petition was filed. Ms. Cebulskie attached a copy of Mr. Cebulskie's death certificate to that Status Report. By Order served September 12, 2023, the Court amended the case caption to reflect that Mr. Cebulskie is deceased. On September 19, 2023, respondent filed a Status Report advising the Court that currently there is no fiduciary legally authorized to represent the decedent's estate, and (2) the decedent's heirs at law are petitioner Mary H. Cebulskie, the decedent's surviving spouse, and Erin Elizabeth Westermann, the decedent's daughter.
On October 6, 2023, respondent filed a Motion to Dismiss for Lack of Jurisdiction as to Craig J. Cebulskie, Deceased, and To Change Caption (motion to dismiss), asserting that: (1) because the petition was not executed on Mr. Cebulskie's behalf by someone who is legally authorized to represent the estate of the decedent in this litigation, so much of this case relating to the decedent should be dismissed for lack of jurisdiction, and (2) petitioner Mary J. Cebulskie has no objection to the granting of the motion to dismiss.
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, 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 a court-appointed fiduciary, such as an executor, administrator, or personal representative of the 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." Because the interests of a decedent's heirs at law may be affected by the outcome litigation in this Court, the Court customarily provides notice to those heirs at law so that they may take whatever action, if any, is needed to protect their interests.
Upon due consideration of the foregoing, it is
ORDERED that, on or before October 30, 2023, Erin Elizabeth Westermann shall file an Objection, if any, to respondent's Motion to Dismiss for Lack of Jurisdiction as to Craig J. Cebulskie, Deceased, and To Change Caption. Failure to file an objection may result in the granting of respondent's motion and dismissal of so much of this case relating to the decedent. Any objection filed shall address the following matters: (1) whether a probate estate has been or will be opened with respect to decedent's estate; (2) if decedent's estate has been probated, the name and address of the court-appointed fiduciary of decedent's estate; and (3) whether any fiduciary of decedent's estate intends to prosecute this case on decedent's behalf by filing an appropriate Motion to Substitute Parties and Change Caption (to which motion should be attached relevant documentation supporting the individual's status as a court-appointed fiduciary with legal capacity to represent the decedent's estate). It is further
ORDERED that, in addition to regular service, the Clerk of the Court shall serve this Order on Erin Elizabeth Westermann at her address listed in respondent's Status Report, filed September 19, 2023.