Opinion
10398-21S
02-01-2023
BREDT T. SMIDT, DECEASED, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Kathleen Kerrigan Chief Judge
On March 29, 2021, correspondence from Tresa L. Skipper was filed as a petition to commence the above-docketed case. Although that document was signed only by Tresa L. Skipper, it indicated dispute of an attached notice of deficiency for taxable year 2019 issued to Bredt T. Smidt. The submission also indicated that Bredt T. Smidt was deceased. In accordance therewith and to protect a potential party, the case opened was captioned in the name of Bredt T. Smidt, 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 Bredt T. Smidt, 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 Bredt T. Smidt, Deceased, or his estate. At that juncture, by Order served June 16, 2021, the Court directed Tresa L. Skipper or other appropriate representative to file a report on or before July 21, 2021, advising the Court whether Tresa L. Skipper or any other person has been duly appointed the executor, personal representative, or fiduciary for the Estate of Bredt T. Smidt, Deceased, by a court of competent jurisdiction, and attaching thereto the corresponding letters of administration or letters testamentary.
On July 26, 2021, the Court received from Tresa L. Skipper a further submission incorporating a Ratification of Petition and multiple additional attachments. Included therein was documentation reflecting that Tresa L. Skipper had been named executor in a last will and testament and that the will had been delivered to the Denver Probate Court. Nonetheless, there appeared to be no letters of administration or letters testamentary establishing appointment as executor or personal representative by the probate court.
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 Internal Revenue Service (IRS), does not recognize powers of attorney as sufficient. Likewise, merely being named executor in a will is not sufficient. While such may suffice before the IRS, it is not adequate before the Tax Court, which is entirely separate from the IRS.
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.