Opinion
28665-21S
09-22-2022
ERNEST MCCLARY, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Kathleen Kerrigan, Chief Judge.
On September 15, 2022, respondent filed a Motion to Dismiss for Lack of Prosecution. Respondent asserts in his motion that: (1) after filing the petition to commence this case, petitioner died in June 2022; (2) there is no representative or fiduciary currently authorized to represent petitioner's estate; and (3) the only ascertainable heir at law is petitioner's son, Jamarr McClary.
When a taxpayer dies after timely filing a petition for redetermination of a deficiency, "the Court, on motion of a party or the decedent's successor or representative or on its own initiative, may order substitution of the proper parties." Rule 63(a), Tax Court Rules of Practice and Procedure. Pursuant to Tax Court Rule 60(c), 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. Local law is applied to determine who has the capacity to be substituted as a party. Fehrs v. Commissioner, 65 T.C. 346, 349 (1975). It is well settled that the Court's jurisdiction over a case continues unimpaired by the death of the petitioner. Nordstrom v. Commissioner, 50 T.C. 30, 31-32 (1968). But the deceased taxpayer must be represented by a person lawfully authorized to act on behalf of the deceased petitioner's estate who can continue to prosecute the case. Otherwise, dismissal for lack of prosecution is appropriate. Nordstrom v. Commissioner, 50 T.C. at 32. In accordance with the principles established in Nordstrom, we will provide petitioner's heir at law the opportunity to secure a fiduciary or other representative to represent petitioner's estate in this litigation.
Upon due consideration and for cause, it is
ORDERED that, on or before October 14, 2022, petitioner's heir at law, Jamarr McClary, shall file an objection, if any, to respondent's Motion to Dismiss for Lack of Prosecution. It is further
ORDERED that, in addition to regular service on the parties, the Clerk of the Court shall serve copies of this Order and respondent's Motion to Dismiss for Lack of
Prosecution on Jamarr McClary at his address set forth in respondent's Motion to Dismiss for Lack of Prosecution.