Opinion
11748-22S
06-05-2023
EILEEN MCLOUGHLIN, DECEASED, MAUREEN MCLOUGHLIN AYBAR, NEXT FRIEND, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Kathleen Kerrigan, Chief Judge.
On May 16, 2022, a petition was filed to commence this case and signed "Eileen McLoughlin". Later, a motion to be recognized as next friend for the purposes of this case was filed and granted. However, on March 8, 2023, respondent's Motion for Continuance explained, among other things, that petitioner Eileen McLoughlin died before the petition in this case was filed. 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). The Court requires that a decedent's estate be represented by someone acting in a fiduciary capacity, rather than as a next friend: an executor, administrator, or personal representative of the decedent's estate. See Rule 60(c), Tax Court Rules of Practice and Procedure.
Upon due consideration and for cause, it is therefore ORDERED that the Court's Order issued March 7, 2023, is hereby vacated and set aside. It is further
ORDERED that the caption of the case is changed to read "Eileen McLoughlin, Deceased, Petitioner v. Commissioner of Internal Revenue, Respondent". It is further
ORDERED that the Motion to be Recognized as Next Friend filed February 9, 2023, is denied. It is further
ORDERED that, on or before June 26, 2023, Maureen McLoughlin Aybar 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 other heirs at law. It is further
ORDERED that, on or before June 26, 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. It is further
ORDERED that, in addition to regular service on the parties, the Clerk of the Court shall serve an additional copy of this Order on Maureen McLoughlin Aybar.