Opinion
2960-24
05-20-2024
ERWIN FLUSS, DECEASED, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Kathleen Kerrigan, Chief Judge
Pending before the Court are petitioner's two Motions to Proceed Remotely, filed February 23, 2023 (docket entries #7 and #8). The motions are not properly signed by petitioner and appears to be motions submitted by Ilene Marks, an individual (petitioner's daughter) who is not admitted to practice before this Court. The Court will deny the two motions without prejudice.
The petition in this case was filed February 22, 2024. That petition seeks review of a purported notice of deficiency issued to petitioner on November 27, 2023, for the tax year 2021. No notice of deficiency was attached to that petition, nor was the petition signed by petitioner Erwin S. Fluss or a legally authorized representative of Erwin S. Fluss, as required by the Tax Court Rules of Practice and Procedure. The record shows that the petition in this case appears to have been electronically filed by petitioner's daughter, and states among other things, that petitioner died on June 3, 2023, and failed to attach to the petition any letters of testamentary or letters of administration. On April 12, 2024, respondent filed an Answer and attached thereto a complete copy of the notice of deficiency issued to petitioner for his tax year 2021.
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 as to that taxpayer. Fehrs v. Commissioner, 65 T.C. 346, 348-349 (1975). In pertinent part, Rule 60(c) provides that "The 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."
At this juncture and upon review of the entire record, the email address, californiadreamer8@yahoo.com used to electronically file the petition, will be disabled from the record in this case until such time a proper party can litigate this case on behalf of petitioner's estate. Upon due consideration and light of the foregoing, it is
ORDERED that petitioner's Motions to Proceed Remotely filed February 23, 2024 (docket entries #7 and #8), are denied without prejudice. It is further
ORDERED that, on or before June 10, 2024, the parties shall confer concerning the litigation of this case on behalf of decedent's estate including the following matters: (1) whether a probate estate has been or will be opened with respect to the decedent Erwin S. Fluss' estate; (2) if decedent's estate is being probated, whether an executor, administrator, or other duly appointed fiduciary has been appointed for decedent's estate by a court of competent jurisdiction; (3) if so, the name and address of such duly appointed executor, administrator, or other fiduciary for decedent's estate; and (4) if so, exchange any letters testamentary or letters of administration that have been issued. It is further
ORDERED that, on or before July 1, 2024, the parties shall file a status report concerning the status of this case, including the matters set forth in the preceding ordered paragraph. It is further
ORDERED that the Clerk of the Court shall change petitioner's service preference from "electronic" to "paper."