Opinion
5227-22L
06-20-2024
JAMES V. IOVINO, DECEASED, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER TO SHOW CAUSE
Elizabeth Crewson Paris Judge
This case is before the Court on a petition for review of a Notice of Determination Concerning Collection Action(s) Under Section 6320 and/or 6330, sustaining a notice of intent to levy for petitioner's 2014 tax year. On October 4, 2022, docket entry 12, respondent filed a Motion for Summary Judgment (Motion), seeking adjudication in his favor on the issue of whether the Appeals Settlement Officer abused his discretion in declining to grant petitioner Currently Not Collectible status and upholding the levy action. Petitioner did not contest the underlying liability for petitioner's 2014 tax year. Respondent's Motion represented that upon conversation with the petitioner and spouse they did not object to the granting of the motion for summary judgment. On October 31, 2022, docket entry 14, the Court ordered petitioner to file a response to respondent's Motion on or before December 28, 2022. Petitioner did not file a response. On March 8, 2024, respondent informed the Court that petitioner's spouse informed him that petitioner had died on December 25, 2023. Respondent attached the IRS INOLES which also confirmed the date of death as December 25, 2023.
By Order dated March 11, 2024, docket entry 19, the Court ordered that, on or before May 13, 2024, respondent file a Status Report that shall include: (1) whether there are any heirs-at-law of the decedent other than petitioner's spouse Diane L. Iovino; (2) and, if so, the names and addresses of those heirs-at-law; and (3) a copy of the decedent's death certificate.
By status report filed May 10, 2024, docket entry 20, respondent states that he has been unsuccessful collecting any additional information or communicating with petitioner's widow, Diane L. Iovino. Diane L. Iovino, who was previously a party in this case but was dismissed for lack of jurisdiction, is the ascertainable heir of the deceased petitioner. Respondent represents that, during phone conversation on April 18, 2024, Diane L. Iovino informed respondent's counsel that there was no estate for the deceased petitioner. Respondent has been unable to obtain a copy of Mr. Iovino's death certification. Respondent's internal IDRS transcripts reflect that Mr. Iovino was deceased as of December 25, 2023; respondent submitted a copy of an INOLES transcript to corroborate this information.
It is well settled that the Court's jurisdiction over a case continues unimpaired by the death of a taxpayer. See Nordstrom v. Commissioner, 50 T.C. 30, 31-32 (1968). If a taxpayer dies while his case is pending, we will ordinarily substitute the taxpayer's representative or successor as the proper party. See Rule 63(a), Tax Court Rules of Practice and Procedure. A decedent's estate generally may be represented by someone acting in a fiduciary capacity, such as an executor, administrator, or personal representative. See Rule 60(c), Tax Court Rules of Practice and Procedure. We apply local law to determine who may speak for a decedent's estate in this Court. See Fehrs v. Commissioner, 65 T.C. 346, 349 (1975); Beatty v. Commissioner, T.C. Memo. 1980-168. If there is no one with the capacity to prosecute a case on behalf of the decedent's estate, we will dismiss the case for lack of prosecution. See Catlett v. Commissioner, T.C. Memo. 2021-102; Wyler v. Commissioner, T.C. Memo. 1990-285.
In accordance with the principles established in Nordstrom, we will provide the decedent's heir-at-law the opportunity to respond to respondent's Motion.
After due consideration, and for cause, it is
ORDERED that, on or before July 31, 2024, petitioner James V. Iovino's known heir-at-law, Diane L. Iovino shall show cause why respondent's Motion for Summary Judgment, filed October 4, 2022, docket entry 12, should not be granted and the Notice of Determination as to petitioner James V. Iovino sustained. Failure to comply with this Order may result in the granting of the Motion. It is further
ORDERED that, should the decedent petitioner's heir-at-law, Diane L. Iovino, fail to file a response to respondent's Motion for Summary Judgment, respondent shall file with the Court no later than August 15, 2024, a status report describing the then-present status of the case and may file a motion to dismiss the case for failure to properly prosecute. It is further
ORDERED that, in addition to regular service, the Clerk of the Court shall serve copies of the following documents: (1) respondent's Motion for Summary Judgment, docket entry 12; (2) Declaration in Support of Respondent's Motion for Summary Judgment, docket entry 13; and (3) a copy of this Order on petitioner's heir-at-law Diane L. Iovino at the home address shown in this case.
The parties are reminded of the free legal assistance available for responding to this Order and for assisting with the case, namely the low-income taxpayer clinics in their area, which can be found at the Court's website: https://www.ustaxcourt.gov/clinics/clinics.pdf.