Opinion
11911-22
01-31-2024
JUHEE KIM AND DANIEL KIM, DECEASED, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Kathleen Kerrigan, Chief Judge.
The Petition filed to commence this case on May 26, 2022, indicates that petitioner Daniel Kim is deceased. That Petition seeks review of a notice of deficiency dated January 3, 2022, and issued to the decedent and petitioner Juhee Kim for the taxable year 2018. The Petition was filed by Juhee Kim, but it is not clear whether that individual is a fiduciary entitled to institute this case on behalf of the decedent. No letters testamentary, letters of administration, or other probate court papers appear to be attached to the Petition.
In general, Rule 60(a) provides that a case shall be brought by the person against whom a deficiency has been determined or by a fiduciary entitled to institute a case on behalf of such person. The burden of proving that the Court has jurisdiction is on the taxpayer, and it is well settled that, unless the petition is filed by the taxpayer, or by someone lawfully authorized to act on the taxpayer's behalf, this Court is without jurisdiction. See Fehrs v. Commissioner, 65 T.C. 346, 348-349 (1975). The capacity of a fiduciary or other representative to litigate in this Court is determined by state law. See Rule 60(c). Accordingly, any person bringing a case in this Court on behalf of a deceased taxpayer bears the burden of proving that he or she is entitled under state law to institute such a case. See Rule 60(a), (c); see also Fehrs, 65 T.C. at 348-349; Sander v. Commissioner, T.C. Memo. 2022-103; Clifton v. Commissioner, T.C. Memo. 1981-493.
All Rule references are to the Tax Court Rules of Practice and Procedure, which are available on the Court's website at https://ustaxcourt.gov/rules.html.
Notwithstanding the foregoing, Rule 60(a) provides that a case timely brought shall not be dismissed on the ground that it is not properly brought on behalf of a party until a reasonable time has been allowed after objection for ratification by such party of the bringing of the case; and that such ratification shall have the same effect as if the case had been properly brought by such party.
As noted above, it is not clear whether Juhee Kim is a fiduciary entitled to institute this case on behalf of the decedent. Thus, in order to confirm that the Court has jurisdiction to enter a decision in this case as to the decedent, we will direct the parties as set forth below.
Upon due consideration of the foregoing, it is
ORDERED that the Proposed Stipulated Decision, filed January 5, 2024, is recharacterized as a Stipulation of Settlement as to Petitioner Juhee Kim and Respondent. It is further
ORDERED that, at a reasonable date and time, but no later than March 1, 2024, respondent and petitioner Juhee Kim shall confer regarding the status of this case, including the following matters:
1. Whether the estate of the decedent Daniel Kim (decedent) has been (or is being or will be) probated;
2. If so, whether letters testamentary, letters of administration, or other probate papers duly appointing a fiduciary for the decedent's estate have been (or will be) issued (and, if so, the name and address of such duly appointed fiduciary);
3. If the estate has been probated but has since been closed, whether there are any plans to reopen it for purposes of this proceeding; and
4. If the estate of the decedent has not been (and will not be) probated, the names and addresses of his heirs at law and whether any of them might be willing to serve as a fiduciary for his estate.
It is further
ORDERED that, on or before March 15, 2024, the parties shall file a joint report regarding the then-present status of this case and shall address therein the matters identified in the preceding ordered paragraph. The parties shall attach to the joint report (1) a copy of the death certificate for the decedent and (2) any letters testamentary, letters of administration, or other probate papers duly appointing a fiduciary for the decedent's estate. It is further
ORDERED that the Clerk of the Court shall attach to this Order a copy of the Court's publication, "Representing a Taxpayer Before the U.S. Tax Court."
REPRESENTING A TAXPAYER BEFORE THE U.S. TAX COURT
The United States Tax Court, which is separate and independent from the Internal Revenue Service (IRS), has certain requirements that must be met before someone can represent another person or entity before the Court. Unlike the IRS, the Court does not recognize powers of attorney.
Who can represent me in my Tax Court case?
• You may represent yourself or hire an attorney or other person who is admitted to practice before the Court. You will know that a person is admitted to practice before the Court because that individual will have a Tax Court bar number. All representatives who practice before the Tax Court are subject to the American Bar Association's Model Rules of Professional Conduct.
What if the person I want to represent me is not admitted to practice before the Court?
• If your representative is an attorney, he or she may submit an application to seek admission to the Court's bar. Upon admission, the attorney will be assigned a Tax Court bar number and can then represent you in the case.
• If your representative is not an attorney, that person can only be admitted to practice before the Court by taking a written examination given every two years and by meeting other Court requirements. Information concerning the application for admission and the Court's nonattorney exam may be found on the Court's website, www.ustaxcourt.gov.
May I represent the estate or trust of a deceased taxpayer before the Court without hiring a representative?
• Yes, if you are a duly authorized fiduciary or representative of the deceased taxpayer. For example, a state court of competent jurisdiction may appoint an individual as an executor, administrator, or personal representative of a deceased person. If you are a fiduciary, you should file a "Motion for Substitution of Party and to Change Caption" and attach a copy of the state court-issued letters of administration or letters testamentary. The motion must list the case name and docket number.
May I represent an incompetent or incapacitated taxpayer before the Court?
• Yes, if you are a fiduciary duly appointed under state law, such as a guardian or conservator. If you have been appointed to serve as a conservator or guardian of the petitioner, you may file a Motion to Substitute Party and attach a copy of any documents providing proof of your appointment. The motion must list the case name and docket number.
In the alternative, the Court may permit you to be recognized as petitioner's "next friend" by filing a Motion to Be Recognized as Next Friend stating:
1. that petitioner cannot prosecute this case without assistance;
2. that the person seeking appointment as next friend would like to be recognized as petitioner's next friend, he or she has a significant relationship with petitioner, and would represent petitioner's best interests;
3. that there is no other person better suited to serve as next friend; and
4. the names and addresses of persons (e.g., spouse, parent, or siblings) who may have an interest in this matter.
You must include as an attachment to the motion a current statement from the petitioner's personal physician (or equivalent support) indicating that the petitioner is not competent to prosecute his or her case without assistance. You must also state in the motion whether anyone is known to have an objection to the Court's recognition of you as the petitioner's next friend. The motion must list the case name and docket number.
Please visit the Court's website, www.ustaxcourt.gov , for additional resources and information.