Opinion
641-20
10-01-2021
Edward C. Frias Petitioner v. Commissioner of Internal Revenue Respondent
ORDER
Patrick J. Urda Judge
This case was continued from the Court's November 16, 2020, New York, New York, remote trial session, with jurisdiction retained by the undersigned.
On September 27, 2021, the Commissioner filed a motion to dismiss this case for lack of prosecution insofar as it purports to be an appeal by or on behalf of petitioner Edward C. Frias, deceased. Among other things, the Commissioner's motion states: (1) that Mr. Frias died in Newark, New Jersey, on January 21, 2021, which was subsequent to the filing of the petition in this case, (2) that he has called Mr. Frias's daughter and brothers to determine whether a representative or fiduciary is currently authorized to act on behalf of the estate or whether Mr. Frias left a will or named an executor to his estate, but he has received no response, (3) that he is unaware of whether a representative or fiduciary is currently authorized to act on behalf of the estate and whether Mr. Frias left a will or named an executor of his estate, and (4) at present, he is unaware of the heirs of Mr. Frias' estate.
The motion does not, at this point, contain sufficient information for the Court to properly determine whether the case should be dismissed for lack of prosecution. See Nordstrom v. Commissioner, 50 T.C. 30 (1968). More specifically, the motion lacks detail that would allow us to conclude that the Commissioner has acted reasonably with respect to determining whether a representative could properly prosecute this case in Mr. Frias' stead.
We accordingly will ask the Commissioner to file a supplement to his motion to dismiss for lack of prosecution. In his supplement, the Commissioner shall address his efforts to ascertain: (1) whether Mr. Frias's estate has been or will be probated, (2) if the estate has been probated, whether a Court of competent jurisdiction appointed an executor, personal representative, or other fiduciary for Mr. Frias or his estate, (3) if so, the name, address, and telephone number of such duly appointed executor, personal representative, or other fiduciary, (4) whether such duly appointed executor, personal representative, or other fiduciary intends to prosecute this case on behalf of Mr. Frias's estate and will file an appropriate motion to substitute parties with the Court in this case, and (5) if Mr. Frias's estate has not been or will not be probated, the names and addresses of his heirs at law.
Accordingly, it is
ORDERED that, on or before October 29, 2021, the Commissioner shall file a supplement to the motion to dismiss for lack of prosecution.