Opinion
9146-22S
07-07-2023
THOMAS C. KUHNS & DONNA J. KUHNS, DECEASED, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Adam B. Landy Special Trial Judge
On March 16, 2023, the Commissioner filed a Motion to Dismiss for Lack of Jurisdiction as to Donna J. Kuhns, Deceased and to Change Caption. See Rules 53 and 60, Tax Court Rules of Practice and Procedure. In the Motion, the Commissioner contends that the Petition as to Donna J. Kuhns, who died before the Petition was filed, was not executed or filed by a fiduciary or personal representative duly appointed on her behalf or her estate. According to the Commissioner, Thomas C. Kuhns represented that no fiduciary or personal representative has been or will be duly appointed to administer the Estate of Donna J. Kuhns, Deceased.
By Status Report, filed June 1, 2023, the Commissioner notified the Court that Mrs. Kuhns' living heirs-at -law are William C. Kuhns and Kimberly Marie Kuhns in addition to petitioner Thomas C. Kuhns. On June 5, 2023, the Court ordered Mrs. Kuhns' living heirs-at -law to show cause in writing, on or before June 30, 2023, why the Commissioner's motion should not be granted. The Court received no response from the living heirs-at -law by the stated deadline.
The burden of proving that the Court has jurisdiction lies with the petitioners, and unless the petition is filed by the deceased petitioner or someone lawfully authorized to act on her behalf, the Court lacks jurisdiction as to that petitioner. Fehrs v. Commissioner, 65 T.C. 346, 348 (1975).
The foregoing considered, it is
ORDERED that the Order to Show Cause, served June 5, 2023, is hereby made absolute. It is further
ORDERED that the Commissioner's Motion to Dismiss for Lack of Jurisdiction as to Donna J. Kuhns, Deceased, and to Change Caption, filed March 16, 2023, is granted, and this case is dismissed for lack of jurisdiction as to Donna J. Kuhns, Deceased. It is further
ORDERED that the caption of this case is amended to read "Thomas C. Kuhns, Petitioner v. Commissioner of Internal Revenue, Respondent." It is further
ORDERED that, in addition to regular service on the parties, the Clerk of the Court shall serve this Order on William C. Kuhns and Kimberly Marie Kuhns at the addresses listed in paragraphs 3(a) and 3(b) of the Commissioner's Status Report, filed June 1, 2023.