Opinion
14214-22
04-15-2024
TOMAS CONTRERAS, DECEASED, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER TO SHOW CAUSE
Kathleen Kerrigan Chief Judge
On April 12, 2024, respondent filed a Motion to Dismiss for Lack of Prosecution. The Motion represents that petitioner died on or about May 11, 2022, and that, to date, respondent has not been advised of any fiduciary or other representative authorized to act on behalf of the decedent's estate. The Motion identifies the decedent's surviving spouse, Carmen Contreras, and two surviving issue, Carmen Contreras and Sandra Contreras, as the only ascertainable heirs at law.
In general, Rule 60(a) provides that a case shall be brought by the person against whom a deficiency has been determined or by a fiduciary entitled to institute a case on behalf of such person. The burden of proving that the Court has jurisdiction is on the taxpayer, and 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, this Court is without jurisdiction. See Fehrs v. Commissioner, 65 T.C. 346, 348-349 (1975). The capacity of a fiduciary or other representative to litigate in this Court is determined by state law. See Rule 60(c). Accordingly, any person bringing a case in this Court on behalf of a deceased taxpayer bears the burden of proving that he or she is entitled under state law to institute such a case. See Rule 60(a), (c); see also Fehrs, 65 T.C. at 348-349; Sander v. Commissioner, T.C. Memo. 2022-103; Clifton v. Commissioner, T.C. Memo. 1981-493.
All Rule references are to the Tax Court Rules of Practice and Procedure.
Notwithstanding the foregoing, 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 that such ratification shall have the same effect as if the case had been properly brought by such party.
Based on the representations in respondent's Motion, it appears that the Court may lack jurisdiction in this case. As noted above, respondent's Motion represents that petitioner died on or about May 11, 2022. However, the Petition in this case was not filed until June 26, 2022. Moreover, respondent's Motion represents that, to date, no fiduciary or other representative appears to have been duly appointed under state law to act on behalf of the decedent's estate. Thus, it appears that this case was not brought by the decedent or by a person entitled under state law to institute a case on behalf of the decedent's estate. Consequently, it appears that the proper ground for dismissal of this case is lack of jurisdiction rather than lack of prosecution. That being so, it is
ORDERED that, on or before May 15, 2024, each party shall file a response showing cause in writing why this case should not be dismissed for lack of jurisdiction on the ground that the case was not brought by the decedent Tomas Contreras or by a fiduciary or other representative entitled under state law to institute a case on behalf of the decedent's estate. Failure to comply with this Order may result in the dismissal of this case or other appropriate action by the Court. It is further
ORDERED that, in addition to regular service, the Clerk of the Court shall serve copies of this Order on (1) Carmen Contreras (surviving spouse) at the mailing address listed for her in paragraph 8 of respondent's Motion to Dismiss for Lack of Prosecution; (2) Carmen Contreras (surviving issue) at the business address listed for her in paragraph 5 of such Motion; and (3) Sandra Contreras (surviving issue) at the mailing address listed for her in paragraph 8 of such Motion. It is further
ORDERED that action on respondent's Motion to Dismiss for Lack of Prosecution shall be held in abeyance pending further direction by the Court.