Opinion
15370-23L
10-11-2023
MARY R. FOGARTY & THOMAS A. FOGARTY, DECEASED, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Kathleen Kerrigan, Chief Judge
On September 26, 2023, a petition was filed by counsel to commence the above-docketed case on behalf of Mary R. Fogarty and Thomas V. Fogarty, Deceased. The document indicated dispute of an attached notice of determination concerning collection action for, inter alia, the taxable year 2015, 2016, and 2017, issued to Thomas V. Fogarty, Deceased, and Mary R. Fogarty. The petition also suggested that Mary R. Fogarty was acting on behalf of her deceased husband as the surviving spouse, but no corroborating documentation was offered.
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). In this connection, it should be noted that the Court, unlike the Internal Revenue Service (IRS), does not recognize powers of attorney as sufficient. Likewise, merely being named executor in a will is not sufficient, nor is reliance on an IRS Form 56, Notice of Fiduciary Relationship, absent court appointment. While such may suffice before the IRS, it is not adequate before the Tax Court, which is entirely separate from the IRS.
Given the foregoing, this matter now raises the jurisdictional question of whether the case, insofar as it may purport to be an appeal by or on behalf of Thomas V. Fogarty, Deceased, or his estate, was filed by a fiduciary or personal representative duly appointed by a court of competent jurisdiction and/or otherwise legally entitled to institute a case on behalf of Thomas V. Fogarty, Deceased, or his estate.
Upon due consideration, it is
ORDERED that the caption in this case shall be amended to read: "Mary R. Fogarty & Thomas V. Fogarty, Deceased, Petitioners v. Commissioner of Internal Revenue, Respondent". It is further
ORDERED that, on or before November 22, 2023, Mary R. Fogarty shall file a report advising: (1) Whether Mary R. Fogarty or any other person has been duly appointed the executor, personal representative, or fiduciary for the Estate of Thomas V. Fogarty, Deceased, by a court of competent jurisdiction, attaching thereto the corresponding letters of administration or letters testamentary; or (2) whether Mary R. Fogarty commenced this case as the successor in interest to the deceased spouse under California law, likewise attaching appropriate documentation. Failure to comply with this Order may result in partial dismissal of the instant case as to Thomas V. Fogarty, Deceased, or other appropriate action by this Court.