Opinion
12949-20L
11-03-2021
Deborah Alberta Messina Petitioner v. Commissioner of Internal Revenue Respondent
ORDER
Courtney D. Jones, Judge
This case was called from the calendar at the remote trial session of the Court scheduled to commence at Baltimore, Maryland on November 1, 2021. On October 8, 2021, respondent filed a Motion to Dismiss for Lack of Prosecution (docket entry no. 7). Respondent asks the Court to uphold the determinations as set forth in the September 29, 2020, Notice of Determination.
Further, respondent advises in the motion that: (1) petitioner died after the filing of the petition in this case, and (2) Donald Messina is identified as personal representative for petitioner's estate. A copy of the Estate Record for petitioner is attached to the motion. Respondent also indicates that a letter was sent to Donald Messina on August 10, 2021, asking him to confirm petitioner's death, advising him that petitioner's death did not end this case, and of the next steps to be taken to facilitate resolution of this case.
We have held that a petitioner's death does not divest this Court of jurisdiction over his income tax liability for any taxable year already in issue. Nordstrom v. Commissioner, 50 T.C. 30 (1968). Rule 63(a)1 provides that if a petitioner dies, 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 60(c) controls the legal capacity of a representative in this Court. We apply local law to determine who has the capacity to be substituted as a party. Fehrs v. Commissioner, 65 T.C. 346, 349 (1975).
In this case, petitioner died shortly after she filed the petition. Our jurisdiction over this case continues unimpaired by the death of a petitioner and under Rule 63(a), a representative or successor may be substituted as a party to prosecute this matter on behalf of the deceased petitioner. Respondent has identified an individual who may have legal capacity in this Court to continue prosecuting this matter. Therefore, it is hereby
ORDERED that a representative or successor with legal capacity to act on behalf of petitioner enter his or her appearance before this Court, on or before December 2, 2021, to be substituted as a party and to prosecute this matter on behalf of the deceased petitioner. It is further
ORDERED that the Clerk of the Court shall, in addition to the usual service upon the parties, serve a copy of this Order upon Donald Messina at the following address: 10 Anchor Way, Berlin, Maryland 21811. It is further
ORDERED that jurisdiction over this matter is retained by the undersigned and respondent's motion to dismiss for lack of prosecution is hereby taken under advisement.