Opinion
21021-21S
02-08-2023
PATRICIA L. SMITH & MICHAEL T. SMITH, DECEASED, PATRICIA L. SMITH, SURVIVING SPOUSE, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Kathleen Kerrigan Chief Judge
On June 7, 2021, correspondence from Patricia L. Smith was filed as a petition to commence the above-docketed case. Although that document was signed only by Patricia L. Smith, it indicated dispute of an attached notice of deficiency for taxable year 2018 issued to Michael T. Smith and Patricia L. Smith. Patricia L. Smith further advised that Michael T. Smith was 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 Michael T. Smith, 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 Michael T. Smith, Deceased, or his estate. At that juncture, by Order served September 3, 2021, the Court directed Patricia L. Smith or other appropriate representative to file a ratification of petition establishing appropriate fiduciary representation for the deceased taxpayer. To date, nothing further has been received from Patricia L. Smith 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 this case is dismissed for lack of jurisdiction as to Michael T. Smith, Deceased. It is further
ORDERED that the caption of this case is amended to read "Patricia L. Smith, Petitioner v. Commissioner of Internal Revenue, Respondent".