Opinion
26025-22S
06-27-2023
CATHERINE R. PEKOSH, DECEASED, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER AND ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Kathleen Kerrigan, Chief Judge.
The petition filed to commence this case does not bear the signature of petitioner (decedent), who was deceased at the time of filing. In general, Rule 60(a), 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 as to that taxpayer. 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.
In a Response filed on January 23, 2023, to the Court's Order issued December 20, 2022, Laura McEnerny, one of decedent's heirs at law, stated that there is no intention to commence a probate proceeding with respect to decedent's estate. Thus, it appears that no lawfully authorized fiduciary will be appointed who can represent decedent or decedent's estate in this litigation.
By Order to Show Cause issued April 18, 2023, the Court therefore directed respondent and decedent's heirs at law--Laura McEnerny, David Pekosh, and Richard Pekosh--to show cause in writing why this case should not be dismissed for lack of jurisdiction on the grounds that the petition was not filed by the taxpayer or by someone lawfully authorized to represent decedent's estate. On May 22, 2023, respondent filed a Response to the Court's Order to Show Cause, therein agreeing that as the petition was not filed by decedent or by someone lawfully authorized to represent decedent's estate, this case must be dismissed for lack of jurisdiction. No response has been received from decedent's heirs at law. Accordingly, we will dismiss this case for lack of jurisdiction. However, although this case cannot be prosecuted in this Court, decedent's heirs at law are advised that they are free to pursue an administrative resolution with respect to decedent's 2020 tax liability directly with the IRS.
Upon due consideration of the foregoing, it is ORDERED that the Court's above-referenced Order to Show Cause is made absolute. It is further
ORDERED that this case is dismissed for lack of jurisdiction. It is further
ORDERED that, in addition to regular service, the Clerk of the Court shall serve this Order on Laura McEnerney, David Pekosh, and Richard Pekosh at their respective addresses listed in the above-referenced Response, filed January 23, 2023.