Opinion
4758-22
10-28-2022
AUDREY TAYLOR DAVIS & FLOSSIE J. DAVIS, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Emin Toro, Judge.
This case is currently calendared for trial during the Court's January 30, 2023, Kansas City, Missouri, trial session. On October 18, 2022, respondent filed a Motion to Dismiss for Lack of Prosecution as to petitioner Flossie J. Davis, who died after filing the petition (Doc. 7). Respondent moves that the case, "insofar as it purports to be an appeal by or on behalf of Flossie Davis, deceased, be dismissed for lack of prosecution," and the Court find in its order that there is a reduced deficiency in tax and penalties due from petitioner Flossie J. Davis as follows:
Year
Deficiencv
Penalty Under Year I.R.C. § 6662(a)
2018
$966.00
Not Asserted
2019
0.00
0.00
As respondent notes in his motion, the foregoing deficiency amounts represent a reduction in the amounts determined in the notice of deficiency.
In respondent's motion, respondent asserts that: (1) subsequent to the filing of the petition in this case, petitioner Flossie J. Davis died on May 14, 2022, (2) "no representative or fiduciary is currently authorized to act on behalf of the Estate of Flossie Davis, deceased," (3) petitioner "Flossie J. Davis, deceased, did not have a will and there are no plans to probate her estate," and (4) "the only known heir at law of the decedent is her surviving spouse petitioner Audrey [Taylor] Davis."
Attached as Exhibit A to respondent's motion is a redacted copy of a Death Certification issued on May 18, 2022, by the KC Health Department, indicating that petitioner Flossie J. Davis died on May 14, 2022, and was survived by petitioner Audrey Taylor Davis. Respondent further represents that petitioner Audrey Taylor Davis has no objection to the granting of the motion.
The Court may dismiss a case at any time and enter a decision against the taxpayer for failure properly to prosecute their case, failure to comply with the Rules of this Court or any order of the Court, or for any cause which the Court deems sufficient. Rule 123(b)i; Stearman v. Commissioner, 436 F.Sd 533, 535-537 (5th Cir. 2006), aff!a T.C. Memo. 2005-39; Bauer v. Commissioner. 97 F.3d 45, 48-49 (4th Cir. 1996); Edelson v. Commissioner. 829 F.2d 828, 831 (9th Cir. 1987), aff's T.C. Memo. 1986-223. When a petitioner dies, the Court generally will order that a representative or successor be substituted as the proper party. Rule 63(a). In the event that no representative of a decedent comes forward to prosecute the decedent's case before this Court, the procedural means for bringing the case to a close is the Commissioner's filing of a motion to dismiss for failure to properly prosecute. See Nordstrom v. Commissioner. 50 T.C. 30, 32 (1968); see also Wyler v. Commissioner, T.C. Memo. 1990-285, 1990 WL 74410, at *3 (1990).
We are satisfied, on the basis of the representations therein and the attachment thereto, that respondent's Motion to Dismiss is well taken. As noted, there is no representative or fiduciary currently authorized to act on behalf of the estate of petitioner Flossie J. Davis, and her heir at law has notice of this case and does not object to her dismissal from it. Accordingly, we will grant respondent's Motion to Dismiss and dismiss this case for failure to properly prosecute as to petitioner Flossie J. Davis.
In view of the fact that the Court may enter only one decision in any case, we will enter a decision as to both petitioners once this case is resolved as to petitioner Audrey Taylor Davis. Accordingly, we will direct respondent and petitioner Audrey Taylor Davis to file either a stipulation of settled issues or a joint status report as set forth below.
Upon due consideration, it is hereby
ORDERED that respondent's Motion to Dismiss for Lack of Prosecution, filed October 18, 2022, is granted in that this case is dismissed for failure to properly prosecute as to petitioner Flossie J. Davis. It is further
ORDERED that a decision will be entered in due course as to petitioners. It is further
I Rule references are to the Tax Court Rules of Practice and Procedure.
ORDERED that, on or before November 23, 2022, respondent and petitioner Audrey Taylor Davis shall file either a stipulation of settled issues or a joint report describing the status of the case.