Opinion
6263-24S
05-21-2024
PHYLLIS LUBIN, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Kathleen Kerrigan Chief Judge
On April 19, 2024, correspondence from Bradley Lubin was filed as a petition to commence the above-docketed case. Although that document was signed only by Bradley Lubin, it indicated dispute of an attached notice of deficiency for taxable year 2021 issued to Phyllis Lubin. Bradley Lubin had also indicated that Phyllis Lubin was deceased, and he referred to himself as the executor of the estate. A purported Ratification of Petition was subsequently filed May 16, 2026, again signed only by Bradley Lubin. However, to date no documentation has been offered to establish that Bradley Lubin was qualified either to file or to ratify a petition on behalf of Phyllis Lubin.
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 Internal Revenue Service (IRS), does not recognize powers of attorney as sufficient. Likewise, merely being named executor in a will is not sufficient, nor is reliance on an IRS Form 56, Notice of Fiduciary Relationship, absent court appointment. While such may suffice before the IRS, it is not adequate before the Tax Court, which is entirely separate from the IRS.
Given the foregoing, this matter now raises the jurisdictional question of whether the case, insofar as it may purport to be an appeal by or on behalf of Phyllis Lubin, Deceased, or her estate, was 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 Phyllis Lubin, Deceased, or her estate.
Upon due consideration, it is
ORDERED that, on or before June 21, 2024, Bradly Lubin shall file a report advising whether Bradley Lubin or any other person has been duly appointed the executor, personal representative, or fiduciary for the Estate of Phyllis Lubin, Deceased, by a court of competent jurisdiction, attaching thereto the corresponding letters of administration or letters testamentary. Failure to comply with this Order may result in dismissal of the instant case as to Phyllis Lubin, Deceased, or other appropriate action by this Court. It is further
ORDERED that, pending resolution of the fiduciary representation and jurisdictional issue, the caption of this case shall be amended to read: "Phyllis Lubin, Deceased, Petitioner v. Commissioner of Internal Revenue, Respondent".