Opinion
18871-22S
07-13-2023
JERRY D. MASK, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Christian N. Weiler Judge
The Petition commencing this case was filed on August 16, 2022, which was signed only by Jerry C. Mask, petitioner's son, as petitioner's power of attorney. The Petition stated that petitioner, Jerry D. Mask, was in a nursing home at the time and was unable to manage his own financial affairs. By Order served October 14, 2022, the Court denied respondent's Motion to Change or Correct Caption and directed the parties that Jerry C. Mask may file an appropriate motion to be recognized as next friend on or before November 16, 2022. Jerry C. Mask failed to file any appropriate motions to gain this recognition.
This case was set for trial in Jackson, Mississippi on May 1, 2023. The case was called and recalled; and respondent notified the Court that petitioner had passed away in January of 2023, but that a basis for settlement had been reached by the power of attorney of the petitioner. However, the Court has not received documentation evidencing that Jerry C. Mask was legally recognized as next friend of Jerry D. Mask (while living). Additionally, the Court has not received any documentation that Jerry C. Mask was appointed as an administrator or executor of Jerry D. Mask's affairs.
As advised in the Court's October 14, 2022 Order, the United States Tax Court, which is separate and independent from the Internal Revenue Service (IRS), has certain requirements that must be met before an individual can be recognized as representing a taxpayer before the Court. Unlike the IRS, the Tax Court does not recognize powers of attorney and, consequently, a power of attorney does not provide Jerry C. Mask with the requisite authority to represent Jerry D. Mask in this proceeding. See Rule 60; I.R.C. § 7453.
Therefore, the Court directs the parties' attention to Rule 60(a) which provides that in a deficiency action, the case shall be brought by the person against whom the Commissioner determined the deficiency or by a fiduciary entitled to institute a case on behalf of such person. The burden of proving that the Court has jurisdiction is on the taxpayer, and 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. See Fehrs v. Commissioner, 65 T.C. 346, 348-49 (1975). The capacity of a fiduciary or other representative to litigate in this Court is determined by state law. See Rule 60(c).
All Rule references are to the Tax Court Rules of Practice and Procedure.
Notwithstanding the foregoing, 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 that such ratification shall have the same effect as if the case had been properly brought by such party.
When an infant or incompetent person has a duly appointed representative (e.g., a general guardian, committee, conservator, or other like fiduciary), the representative may bring a case on behalf of the infant or incompetent person; in the absence of such a representative, an infant or incompetent person may act by a next friend or by a guardian ad litem. See Rule 60(d); see also Campos v. Commissioner, T.C. Memo. 2003-193.
The question of whether Jerry C. Mask was authorized to file a petition for Jerry D. Mask depends on whether state law authorizes him to file a petition for Jerry D. Mask. See Rule 60(c); Fehrs, T.C. at 349; Estate of Peterson v. Commissioner, 45 T.C. 497, 500 (1966); Sander v. Commissioner, T.C. Memo. 2022-103. The relevant state law provides that "an administrator may be appointed to institute and conduct suits, whose power shall cease when the litigation is entirely closed and who shall only account for the proceeds of the suit." Miss. Code Ann. § 91-7-61 (2020).
Since the record in this case does not establish that Jerry C. Mask was authorized to file the petition to commence this case and the petition was not ratified by someone with authority to do so, our jurisdiction in this case remains unresolved.
Considering the foregoing, it is
ORDERED that on or before August 4, 2023, Jerry C. Mask and respondent shall confer concerning the following matters: (1) whether a probate estate has been or will be opened with respect to decedent's estate; (2) if decedent's estate has been probated, the name and address of the duly appointed fiduciary of decedent's estate; (3) whether any fiduciary of decedent's estate intends to prosecute this case on decedent's behalf by filing an appropriate motion to substitute parties and change caption (to which should be attached relevant documentation supporting the individual's status as a fiduciary with legal capacity to represent decedent's estate); and (4) if decedent's estate has not been or will not be probated, the names and addresses of decedent's heirs at law. It is further
ORDERED that on or before August 18, 2023, respondent shall file a status report concerning the then-current status of this case, including information about the above-referenced matters set forth in the ordered paragraph above. A copy of decedent's death certificate shall be attached to the status report. It is further
ORDERED that action on respondent's Motion for Entry of Decision filed on June 14, 2023, shall be held in abeyance pending resolution of our jurisdiction over this matter.