Opinion
4655-24
08-13-2024
WILLIAM W. LA DUKE, DECEASED & DIANNE T. DISKIN, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Kathleen Kerrigan Chief Judge
The Petition to commence this case, in which petitioners seek review of a notice of deficiency issued for their 2021 tax year, was filed on March 26, 2024. The Petition indicates that William W. La Duke was deceased at the time of filing. Petitioners' address in the Court's record is a Texas address. The death certificate for Mr. La Duke that has been provided to the Court indicates that he was a Texas resident at the time of his death.
It is well-settled that the estate of a decedent generally may be represented before this Court by a fiduciary of that estate, such as an executor, administrator, personal representative, or other similar representative. Rule 60(c) of the Tax Court Rules of Practice and Procedure states: "The capacity of a fiduciary or other representative to litigate in the Court shall be determined in accordance with the law of the jurisdiction from which such person's authority is derived." As relevant here, Texas law permits a surviving spouse to commence or continue a case on behalf of a deceased spouse. Texas Estates Code sec. 453.003; Estate of Berry v. Commissioner, 41 T.C. 702 (1964) (citing the prior relevant Texas Code section, sec. 160, Texas Probate Code, which was repealed as of January 1, 2014).
Because Mr. La Duke was deceased at the time the Petition was filed and there was no indication that a personal representative or other fiduciary had been duly appointed to represent Mr. La Duke's estate, on June 26, 2024, the Court issued an Order to Show Cause. That Order directed petitioner Dianne T. Diskin to show cause why so much of this case relating to Mr. La Duke should not be dismissed for lack of jurisdiction. On July 16, 2024, Ms. Diskin filed a Response to the Court's Order to Show Cause, which was supplemented on August 9, 2024. In that Response, as supplemented, Ms. Diskin states that no probate estate has been commenced with respect to Mr. La Duke's estate and, as Mr. La Duke's surviving spouse, she wishes to prosecute this case on behalf of Mr. La Duke's estate, as permitted by Texas law.
Upon due consideration, it is
ORDERED that the Court's Order to Show Cause, issued June 26, 2024, is hereby discharged. It is further
ORDERED that, on the Court's own motion, the Estate of William W. La Duke, Deceased, Dianne T. Diskin, Surviving Spouse is substituted for petitioner William W. La Duke, Deceased. It is further
ORDERED that the caption of this case is amended to read: "Estate of William W. La Duke, Deceased, Dianne T. Diskin, Surviving Spouse, and Dianne T. Diskin, Petitioners v. Commissioner of Internal Revenue, Respondent."