Opinion
5283-21S
12-16-2021
Joe C. Crosby Petitioner v. Commissioner of Internal Revenue Respondent
ORDER TO SHOW CAUSE
Maurice B. Foley, Chief Judge
On February 22, 2021, the petition to commence this case was filed on behalf of petitioner. The petition seeks review of a notice of deficiency issued for petitioner's 2017 tax year. The petition indicates that petitioner is deceased, and it is signed by an individual purporting to be petitioner's power of attorney.
By Order issued November 2, 2021, the Court directed the parties to confer with respect to the following: (1) whether the estate of Joe C. Crosby has been or will be probated, (2) if decedent's estate is being probated, whether an executor, administrator, or other fiduciary has been duly appointed for decedent's estate by a court of competent jurisdiction, as well as the name and address of such duly appointed fiduciary, (3) if decedent's estate has not been or will not be probated, the names and addresses of decedent's heirs and whether any of them might be willing to serve as a fiduciary for decedent's estate, and (4) if there is or will be any fiduciary duly authorized to represent decedent's estate, whether that individual intends to file a proper Motion To Substitute Parties and Change Caption.
On December 8, 2021, respondent filed a status report setting forth the following information: (1) petitioner died in January 2021, before the petition was filed to commence this case, (2) petitioner's estate has not been probated and, accordingly, no fiduciary has been duly appointed by a court of competent jurisdiction to represent petitioner's estate, (3) there are currently no plans to probate petitioner's estate, and (4) petitioner's heirs at law are his surviving spouse, Elinor Crosby, and two children, Andy Crosby and Kathleen MacKenzie. Respondent attached a copy of petitioner's death certificate to his status report.
As discussed in a previous Order of the Court, 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. 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 before this Court 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." Here, as no fiduciary has been duly appointed and there appear to be no plans to probate petitioner's estate in order to have a fiduciary properly appointed to represent petitioner's estate, it appears this Court is without jurisdiction. However, although as circumstances currently stand it appears the Court lacks jurisdiction in this case, petitioners' heirs at law are advised that it may be possible for them to administratively resolve this matter with the IRS.
Upon due consideration, it is
ORDERED that, on or before January 18, 2022, petitioner's above-referenced heirs at law and respondent shall show cause why this case should not be dismissed for lack of jurisdiction with respect to petitioner's estate. It is further
ORDERED that, in addition, to regular service, the Clerk of the Court shall serve copies of this Order, along with copies of respondent's status report, filed December 8, 2021, on petitioner's heirs at law at their addresses listed in respondent's status report filed December 8, 2021.