Opinion
24647-21S
01-24-2023
AISIA KITALY & ERIC MSECHU, DECEASED, AISIA KITALY, SURVIVING SPOUSE, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Kathleen Kerrigan Chief Judge
On July 6, 2021, a petition was filed by counsel on behalf of petitioners to commence the above-docketed case. The document indicated dispute of an attached notice of deficiency for taxable year 2018 issued to Eric Msechu, Deceased, and Aisia Kitaly. In accordance therewith and to protect all potential parties, the case opened was captioned in the names of both Aisia Kitaly and Eric Msechu, Deceased.
Given that record, the matter raised the jurisdictional question of whether the case, insofar as it purported to be an appeal by or on behalf of Eric Msechu, Deceased, or his estate, was executed or filed by a fiduciary or personal representative duly appointed by a court of competent jurisdiction and legally entitled to institute a case on behalf of Eric Msechu, Deceased, or his estate. At that juncture, by Order served October 1, 2021, the Court directed Aisia Kitaly to file a report on or before October 22, 2021, advising: (1) Whether Aisia Kitaly or any other person has been duly appointed the executor, personal representative, or fiduciary for the Estate of Eric Msechu, Deceased, by a court of competent jurisdiction, attaching thereto the corresponding letters of administration or letters testamentary; or (2) whether Aisia Kitaly commenced this case as the successor in interest to Eric Msechu under California law, attaching thereto an affidavit or declaration compliant with Cal. Civ. Proc. Code section 377.32. To date, nothing further has been received from Aisia Kitaly or any other individual.
In general, Rule 60(a) of the Tax Court Rules of Practice and Procedure directs that a case shall be brought by the individual against whom a deficiency or liability has been asserted or by a fiduciary legally authorized to institute a case on behalf of such person. The burden of proving that the Court has jurisdiction is on the taxpayer, and unless the petition is filed by the taxpayer or someone lawfully authorized to act on his or her behalf, the Court lacks jurisdiction. Fehrs v. Commissioner, 65 T.C. 346, 348 (1975). In this connection, it should be noted that the Court, unlike the IRS, does not recognize powers of attorney as sufficient. Likewise, merely being named executor in a will is not sufficient.
Accordingly, upon due consideration of the foregoing and the record herein, it is
ORDERED that, on the Court's own motion, this case is dismissed for lack of jurisdiction as to Eric Msechu, Deceased. It is further
ORDERED that the caption of this case is amended to read "Aisia Kitaly, Petitioner v. Commissioner of Internal Revenue, Respondent".