Opinion
16355-23
01-29-2024
JANET T. MCBRIDE & RICHARD P. MCBRIDE, DECEASED, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Kathleen Kerrigan Chief Judge
On October 13, 2023, petitioners filed the Petition to commence this case, indicating that petitioner Richard P. McBride (decedent) was deceased at the time of filing. In that Petition, petitioner Janet T. McBride represents that she is the executrix of the decedent's estate. By Order served December 7, 2023, the Court directed Ms. McBride to file a Response and attach thereto a copy of the letters testamentary, letters of administration, or other order issued by a court of competent jurisdiction demonstrating that she had been appointed as the executrix of the estate of Richard P. McBride, Deceased. No response has been received by the Court.
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). At this juncture, as the petition does not bear the signature of someone lawfully authorized to act on the decedent's estate's behalf, the Court appears to lack jurisdiction with respect to Richard P. McBride, Deceased. If so, the Court will be obliged to dismiss so much of this case relating to the decedent.
However, in relevant part, 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 a fiduciary capacity, such as an executor, administrator, or personal representative of the decedent's estate. Rule 60(c), Tax Court Rules of Practice and Procedure, provides that "the capacity of a fiduciary or other representative to litigate shall be determined in accordance with the law of the jurisdiction from which such person's authority is derived."
Upon due consideration of the foregoing, it is
ORDERED that, on or before February 29, 2024, petitioner Janet T. McBride and respondent shall confer concerning the following matters: (1) whether a probate estate has been or will be opened with respect to the decedent's estate; (2) if the decedent's estate has been probated, the name and address of the duly appointed fiduciary of the decedent's estate; (3) whether any fiduciary of the decedent's estate intends to prosecute this case on the 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 the decedent's estate); and (4) if the decedent's estate has not been or will not be probated, the names and addresses of the decedent's heirs at law, other than Ms. McBride, the decedent's surviving spouse. It is further
ORDERED that, on or before March 14, 2024, 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 the decedent's death certificate shall be attached to the Status Report.