Opinion
5227-22L
09-09-2024
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, 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 his spouse they did not object to the granting of the motion for summary judgment. On October 31, 2022, 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 notified 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.
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.
On May 10, 2024, docket entry 20, respondent represented that he has had difficulty communicating with petitioner's widow and only ascertainable heir-at-law, Diane L. Iovino. To date, no other heirs-at-law have been identified.
On June 20, 2024, docket entry 21, the Court ordered that, on or before July 15, 2024, petitioner'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. The Court additionally ordered the Clerk of the Court to serve on Diane L. Iovino copies of respondent's Motion for Summary Judgment, Declaration in Support of Respondent's Motion for Summary Judgment, and the June 20, 2024, Order. To date, Diane L. Iovino has not filed a response to the Court's Order.
On August 15, 2024, docket entry 22, respondent filed a Status Report detailing his unsuccessful efforts to contact Diane L. Iovino. Respondent concurrently filed a Motion to Dismiss for Failure to Properly Prosecute, docket entry 23.
After due consideration, and for cause, it is
ORDERED that, on or before November 8, 2024, petitioner James V. Iovino's known heir-at-law, Diane L. Iovino shall show cause why respondent's Motion to Dismiss for Failure to Properly Prosecute, filed August 15, 2024, docket entry 22, should not be granted. 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 to Dismiss for Failure to Properly Prosecute, docket entry 22, and (2) a copy of this Order on petitioner's heir-at-law Diane L. Iovino at the home address shown in this case.
Petitioner is reminded of the free legal help available for responding to this Order and for assisting with the case, namely the local low-income taxpayer clinics, which can be found at the Court's website:
https://www.ustaxcourt.gov/clinics/clinics.pdf. Legal Services of New Jersey 100 Metroplex Drive Edison, N.J. 08817 888-576-5529 Northeast New Jersey Legal Services 574 Summit Avenue, 2nd Floor Jersey City, N.J. 07306 201-792-6363 Rutgers School of Law Federal Tax Clinic 123 Washington Street Newark, N.J. 08816 973-353-1685