Opinion
15037-21S
02-14-2023
SUZANNE C. EMMEL, DECEASED, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER TO SHOW CAUSE
Adam B. Landy Special Trial Judge
On May 3, 2021, Drew Emmel, the son of Suzanne C. Emmel, Deceased, timely filed the petition to commence this case. The petition seeks review of a notice of deficiency issued to Ms. Emmel on January 25, 2021, with respect to the 2018 tax year. No letters testamentary or letters of administration were attached to the petition.
The parties have not provided the Court with a copy of Ms. Emmel's death certificate to confirm her date of death. However, based on research from publicly available resources, it is believed that Ms. Emmel passed away on April 12, 2020, prior to the date respondent issued the notice of deficiency.
On August 4, 2022, respondent filed a Motion for Continuance stating a basis for settlement had been reached and that the parties were planning to file an appropriate motion to have the Court recognize a personal representative for Ms. Emmel. In subsequent Status Reports dated November 7, 2022, December 8, 2022, and January 31, 2023, and in a Motion to Dismiss for Lack of Prosecution, filed January 31, 2023, and as supplemented on February 10, 2023, respondent stated that Drew Emmel has not provided the necessary documentation regarding the administration of Ms. Emmel's estate and has become unresponsive to respondent's communications. The Status Reports and Motion to Dismiss further state that respondent was able to contact Ms. Emmel's additional heirs, Todd Emmel and Gregg Emmel, who stated they would discuss the case with Drew Emmel. However, no letters testamentary or letters of administration have been submitted.
It is well settled that, unless the petition is filed by the taxpayer, or by someone lawfully authorized to act on her behalf, we are without jurisdiction. See Fehrs v. Commissioner, 65 T.C. 346, 348-349 (1975); see also Rule 60(a), Tax Court Rules of Practice and Procedure. In pertinent part, Rule 60(c) provides that "[t]he capacity of a fiduciary or other representative to litigate in the Court shall be determined in accordance with the law of the jurisdiction from which such person's authority is derived." A petitioner must show fiduciary authority to institute a case on behalf of a deceased taxpayer in circumstances where a notice of deficiency was issued post-death for an income tax liability that arose prior to death, as is the case in the instant proceeding. Fehrs, 65 T.C. at 349.
The record does not establish that the petition was filed by an individual who has been duly appointed to represent Ms. Emmel's estate. Moreover, it does not appear that there is a duly appointed representative to ratify the petition and prosecute this case on behalf of Ms. Emmel's estate. In the absence of such a duly appointed representative, the Court lacks jurisdiction to review this matter.
Upon due consideration and for cause, it is
ORDERED that, on or before March 6, 2023, Drew Emmel, on behalf of the deceased petitioner, and respondent each shall show cause in writing why the Court should not dismiss this case for lack of jurisdiction on the ground that the petition was not filed by Suzanne C. Emmel, Deceased, or by someone lawfully authorized to act on her behalf, and there is no duly appointed representative to ratify the petition and prosecute this case on behalf of her estate. It is further
ORDERED that Drew Emmel shall include in the response a copy of the death certificate for Suzanne C. Emmel. It is further
ORDERED that respondent's Motion to Dismiss for Lack of Prosecution, filed January 31, 2023, and as supplemented February 10, 2023, is taken under advisement. It is further
ORDERED that, in addition to regular service on the parties, the Clerk of the Court shall serve this Order on Drew Emmel, Gregg R. Emmel, and Todd Daniel Emmel at the addresses listed on the certificate of service attached to respondent's motion, filed January 31, 2023, and as supplemented February 10, 2023.