Opinion
26025-22S
04-18-2023
CATHERINE R. PEKOSH, DECEASED, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER TO SHOW CAUSE
Kathleen Kerrigan Chief Judge
The petition filed to commence this case does not bear the signature of petitioner, who was deceased at the time of filing. Rather, the petition was signed by Laura McEnerney, who represents that she is petitioner's daughter. On January 23, 2023, Laura McEnerney filed a Respone to the Court's Order issued December 20, 2022. In that Response, Ms. McEnerney states that: (1) a probate proceeding with respect to decedent petitioner's estate has not been and will not be commenced; (2) decedent's heirs at law are Ms. McEnerney, David Pekosh, and Richard Pekosh; and (3) Ms. McEnerney is the affiant with respect to a small estate affidavit executed in connection with decedent's estate under Illinois law. Based on that small estate affidavit, Ms. McEnerney requests that this Court permit her to represent decedent's estate in this case.
In general, Rule 60(a)1, Tax Court Rules of Practice and Procedure provides that a case shall be brought by the taxpayer or by a fiduciary entitled to institute a case on behalf of the taxpayer. The burden of proving that the Court has jurisdiction is on the taxpayer, and 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, this Court is without jurisdiction. See Fehrs v. Commissioner, 65 T.C. 346, 348-349 (1975). A decedent's estate generally may be represented by someone acting in a fiduciary capacity, such as an executor, administrator, or personal representative. Pursuant to Rule 60(c), the capacity of a fiduciary or other representative to litigate in this Court is determined in accordance with the law of the jurisdiction from which such person's authority is derived.
Upon review of the statutory scheme governing Illinois' small estate procedures, it does not appear that those procedures provide the affiant any powers relevant to this proceeding. Illinois' small estate statute only entitles the affiant to collect assets and make payments and distributions on behalf of a decedent with a gross estate that does not exceed $100,000 and does not include any real property. See 755 ILCS 5, Section 25-1. The Illinois small estate statute does not confer upon an affiant the power to prosecute an action in civil court on behalf of a decedent. See Ill. State Treasurer v. Estate of Kormany, 140 N.E.3d 821 (Ill. Ap. Ct. 2019) (holding that the small estate procedure outlined in the Probate Act does not permit the prosecution of an action absent the appointment of a personal representative). Accordingly, Ms. McEnerney has failed to establish that she has the capacity to litigate in this Court on behalf of decedent and, at this juncture, this Court lacks jurisdiction of this case. We note, however, that even if this case cannot be prosecuted in this Court, Ms. McEnerney is free to pursue an administrative resolution of decedent petitioner's 2020 tax liability directly with the IRS.
Upon due consideration of the foregoing, it is
ORDERED that, on or before May 22, 2023, the heirs at law of Catherine R. Pekosh and respondent shall show cause in writing why this case should not be dismissed for lack of jurisdiction. If decedent petitioner's heirs at law object to dismissal of this case for lack of jurisdiction, in their responses they (1) shall advise the Court in writing whether they wish to prosecute this case on behalf of the decedent and, if so, (2) shall provide the name of the executor, administrator, personal representative, or other duly appointed fiduciary for the decedent petitioner's estate, and attach thereto a copy of the letters testamentary, letters of administration, or probate court order issued by a state court of competent jurisdiction duly appointing such fiduciary. It is further
ORDERED that, in addition to regular service, the Clerk of the Court shall serve a copy of this Order on Laura McEnerney, David Pekosh, and Richard Pekosh at their respective addresses listed in the above-referenced Response, filed January 23, 2023.