Opinion
22850-22
02-10-2023
GLADYS GERHARDT & ALBERT F. GERHARDT, DECEASED, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Kathleen Kerrigan Chief Judge
On October 26, 2022, a petition was filed by counsel on behalf of petitioners to commence the above-docketed case. The document indicated dispute of a deficiency for taxable years 2018 and 2019 issued to Albert F. Gerhardt, Deceased, and Gladys Gerhardt. In accordance therewith and to protect all potential parties, the case opened was captioned in the names of both Gladys Gerhardt and Albert F. Gerhardt, Deceased.
Given that record, the matter raised the jurisdictional question of whether the case, insofar as it purported to be an appeal by or on behalf of Albert F. Gerhardt, Deceased, or his estate, was executed or 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 Albert F. Gerhardt, Deceased, or his estate. At that juncture, by Order served December 15, 2022, the Court directed petitioners to file a report on or before January 11, 2023, advising whether Gladys Gerhardt or any other person has been duly appointed the executor, personal representative, or fiduciary for the Estate of Albert F. Gerhardt, Deceased, by a court of competent jurisdiction, attaching thereto the corresponding letters of administration or letters testamentary. To date, nothing further has been received from Gladys Gerhardt or any other individual.
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 IRS, does not recognize powers of attorney as sufficient. Likewise, merely being named executor in a will is not sufficient. While such may suffice before the IRS, it is not adequate before the Tax Court, which is entirely separate from the IRS.
Accordingly, upon due consideration of the foregoing and the record herein, it is
ORDERED that, on the Court's own motion, this case is dismissed for lack of jurisdiction as to Albert F. Gerhardt, Deceased. It is further
ORDERED that the caption of this case is amended to read "Gladys Gerhardt, Petitioner v. Commissioner of Internal Revenue, Respondent".