Opinion
27839-21
05-30-2023
DORIS J. LUNDY, DECEASED, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER TO SHOW CAUSE
Alina I. Marshall Judge
This case is before the Court on respondent's Motion to Dismiss for Lack of Prosecution, filed April 24, 2023.
On August 2, 2021, David W. Lundy timely filed the petition to commence this case. The petition seeks review of a notice of deficiency dated June 28, 2021 issued to Doris J. Lundy, Deceased with respect to her 2018 tax year. No letters of testamentary or letters of administration were attached to the petition and the record in this case indicates that Doris J. Lundy died prior to the issuance of the notice of deficiency in this case.
On April 24, 2023, respondent filed a motion to dismiss for lack of prosecution and, in that motion, advised the Court that Doris J. Lundy's estate will not be submitted for probate and there is no duly authorized representative to act on behalf of the estate. Respondent also advised the Court that no representative or fiduciary is otherwise authorized to act on behalf of the Estate of Doris J. Lundy in this case.
This case was called from the calendar for the remote trial session of the Court on May 15, 2023, for cases where Columbia, South Carolina was selected as place of trial. David W. Lundy, petitioner's son, appeared on behalf of petitioner. Counsel for respondent appeared and was heard.
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, this Court is without jurisdiction. Fehrs v. Commissioner, 65 T.C. 346, 348-49 (1975). In relevant part, however, Tax Court Rule 60(a) provides that "[a] case timely brought shall not be dismissed on the ground that it is not properly brought on behalf of a party until a reasonable time has been allowed after objection for ratification by such party of the bringing of the case; and such ratification shall have the same effect as if the case had been properly brought by such party." A decedent's estate may be represented by someone acting in fiduciary capacity, such as an executor, administrator, or personal representative of the decedent's estate.
Furthermore, Rule 60(c) provides that "[t]he 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." A petitioner must show fiduciary authority to institute a case on behalf of a deceased taxpayer in circumstances where a notice of deficiency was issued post-death for an income tax liability that arose prior to death, as is the case in the instant proceeding. Fehrs, 65 T.C. at 349. As it has been established that the petition does not bear the signature of the decedent and it is unclear whether Mr. Lundy is lawfully authorized to act on behalf of the decedent's estate in this case, the Court may lack jurisdiction.
Upon due consideration and for cause, it is
ORDERED that respondent's Motion to Dismiss for Lack of Prosecution, filed April 24, 2023, is held in abeyance. It is further
ORDERED that the parties shall show cause in writing, on or before June 30, 2023, why the Court should not dismiss this case for lack of jurisdiction on the ground that the petition was not filed by Doris J. Lundy, Deceased, or by someone lawfully authorized to act on her behalf, and there is no duly appointed representative to ratify the petition and prosecute this case on behalf of her estate. If David W. Lundy, or any of petitioner's heirs-at-law, have letters of testamentary, letters of administration, or any other documentation that would suggest that they are properly authorized to represent the decedent's interests before the Court in this case, they shall attach that documentation to their response.
ORDERED that, in addition to regular service on the parties, the Clerk of the Court shall serve this Order and a copy of respondent's Motion to Dismiss for Lack of Prosecution on David W. Lundy, Dennis Patrick Lundy, Brian Keith Lundy and Debra Jean Kasunic at their respective addresses set forth in respondent's Motion to Dismiss for Lack of Prosecution.