Opinion
7989-20
11-08-2021
Lavern N. Gaynor, Petitioner, Petitioner v. Commissioner of Internal Revenue, Respondent
ORDER
David Gustafson Judge
The petition (Doc. 1) in this case was filed on July 10, 2021, by Lavern N. Gaynor (who is represented by counsel). The petition seeks review of a notice of deficiency dated January 7, 2020, issued to petitioner in which the IRS determined the following penalties:
sec. 6663 Year
Penalties Pursuant to I.R.C.
sec. 6662(a)
2009
$75,664.25
$20,443.80
2010
126, 996.75
33, 865.80
2011
572, 727.75
152, 727.40
On January 19, 2021, the Commissioner filed an answer (Doc. 7) to the petition. This case is scheduled to be tried during the Court's Washington, D.C., remote session beginning at 10:00 a.m., on December 13, 2021, pursuant to our notice of trial (Doc. 9) and standing pretrial order (Doc. 10) served July 15, 2021.
However, on July 15, 2021, petitioner filed a motion to substitute parties and change caption (Doc. 11). Through the motion, the Court was informed that petitioner, Lavern N. Gaynor, died on April 12, 2021, and that Mr. George N. Gaynor (decedent's son) has been appointed as the personal representative of her estate. In compliance with the Court's order (Doc. 12), petitioner filed a first supplement (Doc. 13) to that motion on July 28, 2021. In that supplement, petitioner states that "there was no probate estate, no letters testamentary were issued." Petitioner attached to that supplement copies of Lavern N. Gaynor's death certificate corroborating that Lavern N. Gaynor died on April 12, 2021, in Naples, Florida, and a partial copy of decedent's will.
The Commissioner filed a status report (Doc. on September 7, 2021, which stated that George Gaynor (decedent's son) was appointed personal representative under decedent's will, and that George Gaynor intends to represent decedent's estate in this matter. In the report, the Commissioner states that George Gaynor has been recognized as the proper party in another matter that has been filed against the decedent which is pending before the District Court for the Middle District of Florida, captioned United States v. George N. Gaynor, in his capacity as personal representative of the Estate of Lavern N. Gaynor, et al., USDC MDFL Case No. 2-21-cv-382-JBL-MRM.
However, a review of petitioner's first supplement (Doc. 13) shows that, although George Gaynor is named in decedent's will as personal representative of the Estate of Lavern N. Gaynor, that will has not been probated and is not a complete and properly signed document, and George Gaynor has not been duly appointed as personal representative or fiduciary for decedent or decedent' estate by a Florida State probate Court, and the partial copy of the will also appears to identify an additional potential heir at law, Lavern D. Gaynor-Spence (decedent's daughter). Petitioner's first supplement and the Commissioner's status report do not address whether there are any other potential heirs at law to Lavern N. Gaynor's estate, besides Ms. Gaynor-Spence, who may want to serve or who object to Mr. Gaynor being substituted as the proper party in this case.
On October 25, 2021, the parties filed a joint motion for continuance stating there in that "the parties have been communicating about this case for months, in hope of reaching a settlement or narrowing the issues for trial. However, due to the complexity of the issues and the sheer volume of documentation involved, the parties do not expect to be ready for trial during the week of December 13, 2021."
Pursuant to Rule 63(a), when a petitioner dies, "the Court, on motion of a party or the decedent's successor or representative or on its own initiative, may order substitution of the proper parties. State law generally determines who has the capacity to be substituted as a party for a decedent. Rule 60(c); Fehrs v. Commissioner, 65 T.C. 346, 349 (1975). Thus, the appointment of a personal representative, executor, or administrator by the appropriate State court having jurisdiction over the estate of the decedent generally is necessary to establish the capacity of a person to litigate on behalf of the estate. Rule 60(c). It is well established that the Court's jurisdiction over a case continues unimpaired by the death of a petitioner, and even if there has been no administration of that deceased petitioner's estate, the Court may formulate an appropriate procedure to bring such case to a close. Nordstrom v. Commissioner, 50 T.C. 30 (1968).
It is therefore
ORDERED that the caption of this case is amended to read: "Lavern N. Gaynor, Deceased, Petitioner v. Commissioner of Internal Revenue". It is further
ORDERED that the motion to substitute parties and change caption (Doc. 11) filed July 15, 2021, as supplemented (Doc 13) on July 28, 2021, is taken under advisement. It is further
ORDERED that the parties' joint motion for continuance is granted in that this case is stricken and continued from the calendar of the Court's Washington, D.C., remote trial session beginning December 13, 2021, but that jurisdiction is retained by the undersigned judge. It is further
ORDERED that, on or before December 3, 2021, petitioner shall file a status report that shall include the following information: (1) petitioner's position concerning which State's law applies to determine the capacity of the appropriate individual(s) who may be substituted for decedent in this case, (2) the address for Lavern D. Gaynor-Spence (decedent's daughter), and (3) the names and addresses of any other potential heirs at law or successors in interest who desire to prosecute this case on behalf of decedent petitioner Lavern N. Gaynor's estate for purposes of this litigation. It is further
ORDERED that, in addition to regular service, the Clerk of the Court shall serve a copy of this order on Mr. George N. Gaynor (decedent's son) at the address provided for him in the parties' joint status report (see Doc. 15, para. 4).