Opinion
35671-21S
01-16-2024
BRIAN FRANKLIN JOHNSON & SANDRA DOROTHY JOHNSON, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER TO SHOW CAUSE
ADAM B. LANDY SPECIAL TRIAL JUDGE.
This case is calendared for trial at the New York, New York, trial session of the Court scheduled to commence on February 5, 2024.
On January 11, 2024, the Commissioner filed a Motion to Dismiss for Lack of Prosecution. In this Motion, the Court was notified that petitioner Brian Franklin Johnson passed away subsequent to the issuance of the notice of deficiency and filing of the Petition. The Motion further states that (1) no representative or fiduciary is authorized to act on behalf of petitioner Brian Franklin Johnson's estate; (2) there is no probate proceeding currently open, and Mr. Johnson's estate does not intend to open such proceeding; and (3) petitioner Brian Franklin Johnson's ascertainable heirs at law are Diane Joy, Lori Bollotta, and William Johnson. The Commissioner does state that petitioner Sandra Dorothy Johnson, by and through her power of attorney, William Johnson, does not object to the Court granting the Motion.
Attached as Exhibit A to the Commissioner's Motion is a redacted copy of a death certificate issued on December 15, 2021, by the State of New Jersey Department of Health, indicating that Mr. Johnson died on December 12, 2021, and was survived by his spouse, petitioner Sandra Dorothy Johnson.
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. 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).
Unless otherwise indicated, Rule references are to the Tax Court Rules of Practice and Procedure.
The foregoing considered, it is
ORDERED that this case is stricken from the above-referenced trial session, and the parties are excused from appearing at the calendar call on February 5, 2024. It is further
ORDERED that the undersigned retains jurisdiction of this case. It is further
ORDERED that, sua sponte, the caption of this case is amended to read "Brian Franklin Johnson, Deceased & Sandra Dorothy Johnson, Petitioners v. Commissioner of Internal Revenue, Respondent." It is further
ORDERED that, on or before February 16, 2024, Mr. Johnson's additional heirs-at-law, Diane Joy, Lori Bollotta, and William Johnson, shall show cause why this case should not be dismissed for lack of prosecution. It is further
ORDERED that, in addition to regular service, the Clerk of the Court shall serve a copy of this Order and a copy of the Commissioner's Motion to Dismiss for Lack of Prosecution filed January 11, 2024, on each additional heir-at-law, Diane Joy, Lori Bollotta, and William Johnson at their addresses listed in paragraph four (4) of the Commissioner's Motion to Dismiss for Lack of Prosecution. It is further
ORDERED that, on or before March 1, 2024, the parties shall file either a stipulation of settled issues or a joint report regarding the then-present status of this case. It is further
ORDERED that action on the Commissioner's Motion to Dismiss for Lack of Prosecution as to Brian Franklin Johnson shall be held in abeyance until after March 1, 2024, unless the additional heirs-at-law respond to this Order to Show Cause and the parties file the stipulation of settled issues sooner.
Because there is no one to sign any proposed stipulated decision on behalf of Mr. Johnson, the Commissioner and Mrs. Johnson must file a stipulation of settled issues rather than a proposed stipulated decision.