Opinion
6407-22
05-05-2023
WESLEY C. SCHIERMAN, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL AND DECISION
Travis A. Greaves, Judge
Pending before the Court is respondent's Motion to Dismiss for Lack of Prosecution, filed February 23, 2023, and supplemented on March 24, 2023. Therein, respondent requests that this case be dismissed for lack of prosecution on the ground that petitioner died after the filing of the petition and no fiduciary, representative, or heir has come forward to pursue this case.
Background
Respondent determined an income tax deficiency of $113,787, and penalties of $28,447. On December 27, 2021, respondent mailed to petitioner a notice of deficiency. In response to the notice, petitioner timely filed a petition to commence this case. Petitioner died after filing the petition.
All dollar amounts are rounded to the nearest dollar.
Respondent represents that no representative or fiduciary is authorized to act on behalf of petitioner's estate. Under Arizona law, petitioner's only heirs at law are his parents, Diana Verdugo-Fraser and Greg A. Schierman.
On February 23, 2023, respondent filed a Motion to Dismiss for Lack of Prosecution. On March 24, 2023, respondent filed a Supplement to Motion to Dismiss for Lack of Prosecution. We ordered petitioner to file an objection by May 3, 2023, but he failed to do so. Respondent represents that Diana Verdugo-Fraser and Greg A. Schierman, through their attorney, do not object to the granting of this motion.
In addition to contact with their attorney, Diana Verdugo-Fraser was contacted individually and did not object to the granting of this motion. Greg A. Schierman could not be reached by respondent individually.
Discussion The Court may dismiss a case at any time and enter a decision against the taxpayer for failure to properly prosecute his case, failure to comply with the Rules of this Court or any order of the Court, or for any cause which the Court deems sufficient. See Rule 123(b); Edelson v. Commissioner, 829 F.2d 828, 831 (9th Cir. 1987), aff'g T.C. Memo. 1986-223; Stearman v. Commissioner, 436 F.3d 533, 535-37 (5th Cir. 2006), aff'g T.C. Memo. 2005-39.
Unless otherwise indicated, all Rule references are to the Tax Court Rules of Practice and Procedure, and all statutory references are to the Internal Revenue Code, Title 26 U.S.C., in effect at all relevant times.
When a petitioner dies, this Court generally will order that a representative or successor be substituted as the proper party. See Rule 63(a). If no representative of a decedent comes forward to prosecute the decedent's case before this Court, the procedural means for bringing the case to a close is respondent's filing of a motion to dismiss for failure to properly prosecute. See Nordstrom v Commissioner, 50 T.C. 30, 32 (1968).
We are satisfied, based on the representations therein and the attachments thereto, that respondent's motion is well taken. As noted, there is no representative or fiduciary currently authorized to act on behalf of petitioner's estate, and his heirs at law have received notice of this case and do not object to the Court dismissing this case. Accordingly, we will grant respondent's Motion to Dismiss, as supplemented and dismiss this case for lack of prosecution.
Upon due consideration and for cause, it is
ORDERED that respondent's Motion to Dismiss for Lack of Prosecution, filed February 23, 2023, and supplemented March 24, 2023, is granted and this case is dismissed for lack of prosecution. It is further
ORDERED and DECIDED that there is a deficiency in income tax due from petitioner for the taxable year 2019 in the amount of $113,787; and
That there is an addition to tax due from petitioner for the taxable year 2019 under the provisions of I.R.C. § 6651(a)(1) in the amount of $5,689.35; and
That there is a penalty due from petitioner for the taxable year 2019 under the provisions of I.R.C. § 6662(a) in the amount of $22,757.40.