Opinion
13167-22S
03-09-2023
ESTATE OF VIRGINIA M. CUNNINGHAM, DECEASED, CHRISTOPHER W. CUNNINGHAM, EXECUTOR, Petitioner(s) v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Kathleen Kerrigan, Chief Judge.
On March 6, 2023, the Court received from the parties in the above-docketed matter a Proposed Stipulated Decision resolving this litigation. However, review of such decision in conjunction with the record herein raised questions as to the propriety of fiduciary jurisdiction in this case. To wit, it has never been established whether the case, insofar as it may purport to be an appeal by or on behalf of Virginia M. Cunningham, Deceased, or her estate, was filed by a fiduciary or personal representative duly appointed by a court of competent jurisdiction and legally entitled to institute a case on behalf of Virginia M. Cunningham, Deceased, or her estate.
In general, Rule 60(a) of the Tax Court Rules of Practice and Procedure directs that a case shall be brought by the individual against whom a deficiency or liability has been asserted or by a fiduciary legally authorized to institute a case on behalf of such person. The burden of proving that the Court has jurisdiction is on the taxpayer, and unless the petition is filed by the taxpayer or someone lawfully authorized to act on his or her behalf, the Court lacks jurisdiction. Fehrs v. Commissioner, 65 T.C. 346, 348 (1975). Merely being named executor in a will is not sufficient.
Accordingly, upon due consideration, it is
ORDERED that, on or before March 31, 2023, Christopher W. Cunningham shall file a report advising: (1) Whether Christopher W. Cunningham or any other person has been duly appointed the executor, personal representative, or fiduciary for the Estate of Virginia M. Cunningham, Deceased, by a court of competent jurisdiction, attaching thereto the corresponding letters of administration or letters testamentary; or (2) whether Christopher W. Cunningham commenced this case on behalf of Christopher W. Cunningham as the surviving spouse under Texas law, likewise attaching appropriate documentation to the extent relevant, such as an affidavit pursuant to Texas Estates Code Section 453.004 Failure to comply with this Order may result in dismissal of the instant case as to Virginia M. Cunningham, Deceased, or other appropriate action by this Court.