Opinion
20606-19S
03-29-2022
Kotane Gilbert & Felix Gilbert, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Diana L. Leyden, Special Trial Judge
This case is calendared for trial at the May 23, 2022, Denver, Colorado, Trial Session of the Court.
This case was continued from the September 27, 2021, Denver, Colorado, trial session. On July 30, 2021, respondent filed a Motion For Continuance (motion) indicating that respondent had learned in early July, 2021, that petitioner Felix Gilbert died unexpectedly on April 27, 2021. Respondent believed additional time was necessary for petitioner Kotane Gilbert to gather documentation and determine whether she needs outside counsel. Respondent further stated no estate has been opened, that it is unclear whether any person or entity is able to act on petitioner Felix Gilbert's behalf, whether any heirs-at -law wish to contest the issues in this case on the estate's behalf, or whether petitioner Felix Gilbert should be dismissed from this case.
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." Pursuant to Rule 60(c), a decedent's estate may be represented by someone acting in a fiduciary capacity such as an executor, administrator, or personal representative of the decedent's estate. Local law is applied to determine who has the capacity to be substituted as a party. Fehrs v. Commissioner, 65 T.C. 346, 349 (1975). Although it is well settled that the Court's jurisdiction over a case continues unimpaired by the death of the petitioner, Nordstrom v. Commissioner, 50 T.C. 30, 31-32 (1968), it nonetheless must be established that a person lawfully authorized to act on behalf of the deceased petitioner's estate has authorized the continued prosecution of the case. Otherwise, dismissal for lack of prosecution may be appropriate. Id. at 32. The appointment of an executor, administrator, or personal representative by the appropriate State court having jurisdiction over the estate of the decedent normally is necessary to establish the capacity of a person to litigate on behalf of the estate. In accordance with the principles established in Nordstrom, to facilitate the Court's notification of this proceeding to decedent petitioner's heirs at law in order to afford them an opportunity to take whatever action may be necessary to protect their interests, respondent will be directed to investigate and to furnish the Court with information concerning the decedent petitioner's heirs at law and/or whether any person has been appointed the executor, personal representative, or fiduciary for the decedent petitioner's estate.
Upon due consideration and for cause, it is
ORDERED that, on or before April 25, 2022, the parties shall file a report setting forth, the names, mailing addresses, and telephone numbers of any heirs at law of decedent petitioner, whether administration of an estate has been opened for decedent petitioner, and whether any person has been appointed as the executor, personal representative, or fiduciary for such estate. Respondent shall also attach to the report a copy of decedent petitioner's death certificate.