Opinion
30773-21
10-17-2022
KENDAL P. DITTMER, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Cary Douglas Pugh, Judge
This case is currently set for trial at the Court's December 12, 2022, Denver Colorado trial session. On October 3, 2022, the Court received a Letter Dated September 27, 2022, from Timothy Dittmer. The letter advised that petitioner died on January 16, 2022, and John McGuire is no longer counsel for this case. If Mr. McGuire no longer represents petitioner in this case, then a motion to withdraw as counsel should be filed that provides updated contact information for petitioner. See Rule 24(c), Tax Court Rules of Practice and Procedure. To date, the Court has not received a motion.
Mr. Dittmer also requested that he be entered into the case as personal representative. Attached to the letter were copies of a Certificate of Death and a Letter of Administration from Denver Probate Court appointing Mr. Dittmer as petitioner's personal representative. Pursuant to Rule 63(a), when a petitioner dies, "the Court, on motion of a party or the decedent's successor or representative or on its own initiative, may order substitution of the proper parties." Local law is applied to determine who has the capacity to be substituted as a party. Rule 60(c); Fehrs v. Commissioner, 65 T.C. 346, 349 (1975). It is well settled that the Court's jurisdiction over a case continues unimpaired by the death of petitioner. Nordstrom v. Commissioner, 50 T.C. 30, 32 (1968). Nevertheless, the appointment of a personal representative, executor, or administrator by the appropriate State court having jurisdiction over the estate of the decedent normally is necessary to establish the capacity of a person to litigate on behalf of the estate. Upon due consideration and for cause, it is hereby
ORDERED that the Letter Dated September 27, 2022, be recharacterized as Motion to Substitute Party and Change Caption. It is further
ORDERED that, on or before November 13, 2022, respondent and Mr. McGuire shall file responses to the aforementioned motion. The parties should include in their responses their position on removing Mr. McGuire as petitioner's counsel from this case. It is further
ORDERED that in addition to regular service of this Order, the Clerk of the Court shall serve a copy of this Order on Timothy Dittmer at the address listed on the Motion to Substitute and Change Caption.