Opinion
9303-24S
07-22-2024
ROSEMARY CLEAVER, DECEASED & JOHN CLEAVER, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Kathleen Kerrigan Chief Judge
On June 3, 2024, a petition to commence the above-docketed case. Although that document was signed only by John Cleaver, it indicated dispute of an attached notice of deficiency for taxable year 2021 issued to John L. Cleaver and Rosemarie Cleaver. The petition had been captioned in the names of John Cleaver and Rosemary Cleaver, Deceased.
In general, Rule 60(a) of the Tax Court Rules of Practice and Procedure directs 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 unless the petition is filed by the taxpayer or someone lawfully authorized to act on his or her behalf, the Court lacks jurisdiction. Fehrs v. Commissioner, 65 T.C. 346, 348 (1975). In this connection, it should be noted that the Court, unlike the Internal Revenue Service (IRS), does not recognize powers of attorney as sufficient. Likewise, merely being named executor in a will is not sufficient, nor is reliance on an IRS Form 56, Notice of Fiduciary Relationship, absent court appointment. While such may suffice before the IRS, it is not adequate before the Tax Court, which is entirely separate from the IRS.
Given the foregoing, this matter now raises the jurisdictional question of whether the case, insofar as it may purport to be an appeal by or on behalf of Rosemary (or Rosemarie) Cleaver, Deceased, or her estate, was filed by a fiduciary or personal representative duly appointed by a court of competent jurisdiction and legally entitled to institute a case on behalf of Rosemary (or Rosemarie) Cleaver, Deceased, or her estate.
Upon due consideration, it is
ORDERED that, on or before August 19, 2024, John Cleaver shall file a report advising whether John Cleaver or any other person has been duly appointed the executor, personal representative, or fiduciary for the Estate of Rosemary (or Rosemarie) Cleaver, Deceased, by a court of competent jurisdiction, attaching thereto the corresponding letters of administration or letters testamentary, as well as a death certificate. Failure to comply with this Order may result in partial dismissal of the instant case as to Rosemary (or Rosemarie) Cleaver, Deceased, or other appropriate action by this Court.