Opinion
1795-22
03-07-2023
JACK R. MULLIN & SHAWN V. MULLIN, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Kathleen Kerrigan, Chief Judge.
On January 12, 2022, the petition in this case was filed. Petitioners seek review of a notice of deficiency, dated October 6, 2021, issued to petitioners for their 2019 tax year. The petition, which is unsigned by petitioners, indicates that petitioner Shawn V. Mullin died prior to the filing of the petition. On April 26, 2022, the Court received a ratification of petition, signed by petitioner Jack R. Mullin, which also indicates that petitioner Shawn V. Mullin is deceased. By Order issued January 12, 2023, the Court directed the parties to confer and thereafter file status reports concerning whether any probate estate had been or would be opened with respect to petitioner Shawn V. Mullin's (decedent) estate and, if not, whether petitioner Jack Mullin wished to prosecute this case on behalf of decedent as a surviving spouse.
It is well-settled that the estate of a decedent may be represented before this Court by a fiduciary of that estate, such as an executor, administrator, personal representative, or other similar representative. Rule 60(c) of the Tax Court Rules of Practice and Procedure states: "The capacity of a fiduciary or other representative to litigate in the Court shall be determined in accordance with the law of the jurisdiction from which such person's authority is derived." As relevant here, Texas law permits a surviving spouse to commence or continue a case on behalf of a deceased spouse. Texas Estates Code sec. 453.003; Estate of Berry v. Commissioner, 41 T.C. 702 (1964) (citing the prior relevant
Texas Code section, sec. 160, Texas Probate Code, which was repealed as of January 1, 2014).
After conferring with petitioner Jack R. Mullin, on March 2, 2023, respondent filed a status report in which he states that: (1) a probate proceeding has not been and will not be opened with respect to decedent's estate, and (2) petitioner Jack R. Mullin wishes to prosecute this case on behalf of decedent in his capacity of surviving spouse.
Upon due consideration, it is
ORDERED that, on the Court's own motion, Shawn V. Mullin, Deceased, Jack R. Mullin, Surviving Spouse is substituted in this case for petitioner Shawn V. Mullin. It is further
ORDERED that the caption of this case is amended to read: "Jack R. Mullin and Shawn V. Mullin, Deceased, Jack R. Mullin, Surviving Spouse, Petitioners v. Commissioner of Internal Revenue, Respondent".