Opinion
32772-21
02-02-2023
OLUWABAMISE JEGEDE & DIANNE SANTIAGO, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Emin Toro Judge
This case was calendared for trial during the Court's December 5, 2022, New York, New York, trial session. On November 28, 2022, respondent filed a Status Report (Doc. 8) informing the Court that the parties had reached a basis of settlement. By Order served November 30, 2022, among other things, the case was stricken from the December 5, 2022, New York, New York, trial session and the undersigned judge retained jurisdiction.
On January 26, 2023, respondent filed a Motion to Dismiss for Lack of Prosecution as to petitioner Dianne Santiago, who died after filing the Petition (Doc. 10). Respondent moves that the case, "insofar as it purports to be an appeal by on or behalf of Dianne Santiago, deceased, be dismissed for lack of prosecution," and that the Court find in its order that there is no deficiency in income tax due from petitioner Dianne Santiago for the taxable year 2018 and no penalty under the provisions of I.R.C. § 6662(a) due from petitioner Dianne Santiago for the taxable year 2018.
As respondent notes in his Motion, the foregoing deficiency amount represents a reduction in the amount determined in the notice of deficiency.
In respondent's Motion, respondent asserts that (1) subsequent to the filing of the petition in this case, petitioner Dianne Santiago died on April 15, 2022, (2) "no representative or fiduciary is currently authorized to act on behalf of [her estate]," and (3) "the only ascertainable heir at law of the decedent is the surviving spouse, petitioner Oluwabamise Jegede."
Attached as Exhibit A to respondent's Motion is a redacted copy of a Death Transcript issued on April 16, 2022, by The City of New York, indicating that petitioner Dianne Santiago died on April 15, 2022, and was survived by petitioner Oluwabamise Jegede. Respondent further represents that petitioner Oluwabamise Jegede has no objection to the granting of the motion.
The Court may dismiss a case at any time and enter a decision against the taxpayer for failure to properly prosecute their case, failure to comply with the Rules of this Court or any order of the Court, or for any cause which the Court deems sufficient. Rule 123(b); Stearman v. Commissioner, 436 F.3d 533, 535-537 (5th Cir. 2006), aff'g T.C. Memo. 2005-39; Bauer v. Commissioner, 97 F.3d 45, 48-49 (4th Cir. 1996); Edelson v. Commissioner, 829 F.2d 828, 831 (9th Cir. 1987), aff'g T.C. Memo. 1986-223. When a petitioner dies, the Court generally will order that a representative or successor be substituted as the proper party. Rule 63(a). In the event that no representative of a decedent comes forward to prosecute the decedent's case before this Court, the procedural means for bringing the case to a close is the Commissioner's filing of a motion to dismiss for failure to properly prosecute. See Nordstrom v. Commissioner, 50 T.C. 30, 32 (1968); see also Wyler v. Commissioner, T.C. Memo. 1990-285, 1990 WL 74410, at *3 (1990).
We are satisfied, on the basis of the representations therein and the attachment thereto, that respondent's Motion to Dismiss is well taken. As noted, there is no representative or fiduciary currently authorized to act on behalf of the estate of petitioner Dianne Santiago, and her heir at law has notice of this case and does not object to her dismissal from it. Accordingly, we will grant respondent's Motion to Dismiss and dismiss this case for failure to properly prosecute as to petitioner Dianne Santiago.
In view of the fact that the Court may enter only one decision in any case, we will enter a decision as to both petitioners once this case is resolved as to petitioner Oluwabamise Jegede. Accordingly, we will direct respondent and petitioner Oluwabamise Jegede to file either a stipulation of settled issues or a joint status report as set forth below.
Upon due consideration, it is hereby
ORDERED that the caption of this case is amended to read: "Oluwabamise Jegede & Dianne Santiago, Deceased, Petitioners v. Commissioner of Internal Revenue, Respondent." It is further
ORDERED that respondent's Motion to Dismiss for Lack of Prosecution, filed January 26, 2023, is granted in that this case is dismissed for failure to properly prosecute as to petitioner Dianne Santiago. It is further
ORDERED that a decision will be entered in due course as to petitioners. It is further
ORDERED that, on or before March 3, 2023, respondent and petitioner Oluwabamise Jegede shall file either a stipulation of settled issues or a joint report describing the status of the case.