Opinion
8169-21
03-08-2022
Anthony E. Morgan & Darlene L. Morgan, Deceased Petitioners v. Commissioner of Internal Revenue Respondent
ORDER
Maurice B. Foley Chief Judge
By Order of Dismissal for Lack of Jurisdiction, entered February 14, 2022, the Court dismissed this case for lack of jurisdiction on the ground that petitioners failed to properly execute the petition filed to commence this case. On March 2, 2022, petitioner Anthony E. Morgan submitted a ratification of petition signed by Mr. Morgan for himself and petitioner Darlene L. Morgan, who died before the petition was filed; the death certificate for petitioner Darlene L. Morgan, which was filed by the Court as a status report; and a settlement stipulation and stipulated decision signed only by Mr. Morgan for himself and Ms. Morgan, which the Court filed as a motion for entry of decision.
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 Darlene L. Morgan is deceased and it appears that the petition has not been ratified by someone lawfully authorized to act on decedent's behalf, the Court lacks jurisdiction with respect to Darlene L. Morgan.
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, it is
ORDERED that the Court's Order of Dismissal for Lack of Jurisdiction, entered February 14, 2022, is vacated and set aside. It is further
ORDERED that the parties shall confer and thereafter, on or before May 6, 2022, shall file a joint status report concerning the then-current status of this case, including the following information: (1) whether a probate proceeding has been or will be commenced with respect to the estate of the decedent, Darlene L. Morgan, (3) if decedent's estate is being probated, whether an executor, administrator, or other fiduciary has been duly appointed by a court of competent jurisdiction, as well as the name and address of any duly appointed fiduciary, (4) if decedent's estate has not been or will not be probated, the names and addresses of decedent's heirs at law, other than petitioner Anthony E. Morgan, and whether any of them might be willing to serve as a fiduciary for decedent's estate, and (5) if there is or will be any fiduciary duly authorized to represent decedent's estate, whether that individual intends to file a proper Motion to Substitute Parties and Change Caption. It is further
ORDERED that, should no individual be willing and able to serve as a fiduciary of decedent's estate and prosecute this case this case on decedent's behalf, on or before May 6, 2022, the parties shall file a response to this Order and show cause why so much of this case relating to petitioner Darlene L. Morgan should not be dismissed for lack of jurisdiction. It is further
ORDERED that, on or before May 6, 2022, respondent shall file an objection, if any, to petitioner's motion for entry of decision.