Opinion
34041-21
03-13-2023
MALCOLM D. RICHARD & CHAKA RICHARD, DECEASED, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Kathleen Kerrigan, Chief Judge.
On November 1, 2021, a petition was filed to commence the above-docketed case. Although that document was signed only by Malcolm D. Richard, it indicated dispute of an attached notice of deficiency for taxable years 2017 and 2018 issued to Malcolm D. Richard and Chaka Richard. The petition further advised that Chaka Richard was deceased, and he attached the corresponding Certificate of Death reflecting that Chaka Richard passed away on July 30, 2021, before the petition herein was filed. In accordance therewith and to protect all potential parties, the case opened was captioned in the names of both Malcolm D. Richard and Chaka Richard, Deceased.
Given that record, the matter raised the jurisdictional question of whether the case, insofar as it purported to be an appeal by or on behalf of Chaka Richard, Deceased, or his estate, was executed or filed by a fiduciary or personal representative duly appointed by a court of competent jurisdiction and legally entitled to institute a case on behalf of Chaka Richard, Deceased, or his estate. At that juncture, by Order served October 3, 2022, the Court directed Malcolm D. Richard to file a report on or before October 25, 2022, advising whether Malcolm D. Richard or any other person has been duly appointed the executor, personal representative, or fiduciary for the Estate of Chaka Richard, Deceased, by a court of competent jurisdiction, attaching thereto the corresponding letters of administration or letters testamentary. To date, nothing further has been received from Malcolm D. Richard or any other individual.
In general, Rule 60(a) of the Tax Court Rules of Practice and Procedure directs that a case shall be brought by the individual against whom a deficiency or liability has been asserted or by a fiduciary legally authorized to institute a case on behalf of such person. The burden of proving that the Court has jurisdiction is on the taxpayer, and unless the petition is filed by the taxpayer or someone lawfully authorized to act on his or her behalf, the Court lacks jurisdiction. Fehrs v. Commissioner, 65 T.C. 346, 348 (1975). In this connection, it should be noted that the Court, unlike the IRS, does not recognize powers of attorney as sufficient. Likewise, merely being named executor in a will is not sufficient.
Accordingly, upon due consideration of the foregoing and the record herein, it is
ORDERED that, on the Court's own motion, this case is dismissed for lack of jurisdiction as to Chaka Richard, Deceased. It is further
ORDERED that the caption of this case is amended to read "Malcolm D. Richard, Petitioner v. Commissioner of Internal Revenue, Respondent".