Opinion
24559-21
03-24-2022
Moises I. Salazar & Alba Salazar Petitioners v. Commissioner of Internal Revenue Respondent
ORDER
Maurice B. Foley Chief Judge
On November 22, 2021, respondent filed a motion to dismiss for lack of jurisdiction as to tax years 2017 and 2019 and to strike (motion to dismiss). (The Court notes that respondent's motion does not seek to dismiss so much of this case relating to tax year 2018.) By Order served January 28, 2022, the Court directed petitioners, on or before February 22, 2022, to file an objection, if any, to respondent's motion to dismiss. On March 3, 2022, petitioner Alba Salazar filed a letter, stating therein that, after the petition was filed, petitioner Moises I. Salazar died and requesting an extension of time within which to file the objection to respondent's motion to dismiss. A copy of petitioner Moises I. Salazar's death certificate is attached to that letter.
Any action in this Court must be prosecuted by a proper party. It is well settled that the Court's jurisdiction over a case continues unimpaired by the death of a petitioner. A decedent's estate generally may be represented by someone acting in a fiduciary capacity, such as an executor, administrator, or personal representative of the decedent's estate. Even if there has been no administration of a deceased petitioner's estate, this Court may formulate an appropriate procedure to bring such a case to a close, including affording a decedent's heirs at law an opportunity to take whatever action may be necessary to protect their interests. Nordstrom v. Commissioner, 50 T.C. 30 (1968).
Whether an individual has capacity to be substituted as a party is determined under local law. Rule 60(c); Fehrs v. Commissioner, 65 T.C. 346, 349 (1975. Rule 60(c) provides that the capacity of a fiduciary or other representative to litigate in this Court shall be determined in accordance with the law of the jurisdiction from which such person's authority is derived. This may require any fiduciary to have been duly appointed by a court of competent jurisdiction in order to represent a decedent's estate or an incompetent or incapacitated person.
Upon due consideration of the foregoing, it is
ORDERED that the caption of this case is amended to read: "Moises L. Salazar, Deceased, and Alba Salazar, Petitioners v. Commissioner of Internal Revenue, Respondent". It is further
ORDERED that, on or before April 25, 2022, respondent and petitioner Alba Salazar shall confer as to the then-current status of this case, including: (1) whether the estate of decedent Moises L. Salazar has been or will be probated; (2) if decedent's estate will be or has been probated, whether an executor, administrator, or other 1 fiduciary has been duly appointed for decedent's estate by a court of competent jurisdiction and, if so, the name and address of such duly appointed fiduciary; (3) if no fiduciary has been duly appointed by a court of competent jurisdiction, whether there is a successor trustee or similar fiduciary with respect to a living trust of decedent and, if so, the name and address of such fiduciary; (4) if any fiduciary of decedent's estate intends to prosecute this case on decedent's behalf by filing an appropriate motion to substitute parties and change caption; and (5) if decedent's estate has not been or will not be probated, and decedent's estate otherwise has no fiduciary, the names and addresses of decedent's heirs at law, other than petitioner Alba Salazar. It is further
ORDERED that, on or before May 9, 2022, respondent shall file a status report concerning the then-current status of this case, including information about the above-referenced matters set forth in the ordered paragraph above. It is further
ORDERED that the time within which petitioners shall file an Objection, if any, to respondent's above-referenced motion to dismiss is extended to May 9, 2022. 2