Opinion
1489-22
09-19-2023
PETER A. LOMUTO & WINIFRED M. LOMUTO, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Kathleen Kerrigan Chief Judge.
On August 17, 2023, respondent filed a Motion to Dismiss for Lack of Jurisdiction as to Winifred M. Lomuto, Deceased, and To Change Caption. On September 14, 2023, respondent filed a First Supplement to Motion to Dismiss for Lack of Jurisdiction as to Winifred M. Lomuto, Deceased, and To Change Caption. In the motion, as supplemented, respondent asserts that: (1) the petition was not executed by petitioner Winifred M. Lomuto or by someone legally authorized to institute a case on behalf of Ms. Lomuto, who was deceased at the time the petition was filed; (2) there has been no probate proceeding commenced with respect to Ms. Lomuto's estate; (3) Ms. Lomuto had no heirs at law other than petitioner Peter A. Lomuto; and (4) Mr. Lomuto has no objection to the granting of respondent's motion. Respondent provided the Court with a copy of Ms. Lomuto's death certificate.
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, we are without jurisdiction as to that taxpayer. Fehrs v. Commissioner, 65 T.C. 346, 348-349 (1975). As the petition was not filed by Ms. Lomuto or someone legally authorized to act on her estate's behalf, the Court lacks jurisdiction with respect to Ms. Lomuto or her estate.
Upon due consideration of the foregoing, it is
ORDERED that respondent's Motion to Dismiss for Lack of Jurisdiction as to Winifred M. Lomuto, Deceased, and To Change Caption, as supplemented, is granted and so much of this case relating to petitioner Winifred M. Lomuto is dismissed for lack of jurisdiction. It is further
ORDERED that the caption of this case is amended to read: "Peter A. Lomuto, Petitioner v. Commissioner of Internal Revenue, Respondent". It is further
ORDERED that the due date for petitioner Peter A. Lomuto to file a proper Ratification of Petition is extended to October 10, 2023. Failure to comply with this Order may result in the dismissal of this case for lack of jurisdiction. It is further
ORDERED that, in addition to regular service, the Clerk of the Court shall serve a copy of this Order on petitioner in care of Sam Susser, Susser & Associates, 10818 Redlake Isle, Boynton Beach, Florida 33473.