Opinion
8778-22
03-28-2023
MARGARET K. SMITH, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER TO SHOW CAUSE
Travis A. Greaves Judge
This case is currently calendared for trial at the trial session of the Court scheduled to commence on May 8, 2023, in Phoenix, Arizona. On March 10, 2023, respondent filed a Motion to Dismiss for Lack of Jurisdiction (Motion). Therein, respondent requests that this case be dismissed for lack of jurisdiction on the ground that the Petition was not filed by Margaret K. Smith, who apparently had died before the time of its filing, or by someone lawfully authorized to act on her behalf.
In general, Rule 60(a) provides that a case shall be brought by the person against whom a deficiency or liability has been asserted or by a fiduciary entitled to institute a case on behalf of such person. The burden of proving that the Court has jurisdiction is on the taxpayer, and it is well settled that, unless the petition is filed by the taxpayer, or by someone lawfully authorized to act on the taxpayer's behalf, this Court is without jurisdiction. See Fehrs v. Commissioner, 65 T.C. 346, 348-49 (1975). A decedent's estate may be represented by someone acting in a fiduciary capacity, such as an executor, administrator, or personal representative. See Rule 60(c); see also Fehrs, 65 T.C. at 348-49; Clifton v. Commissioner, T.C. Memo. 1981-493.
All Rule references are to the Tax Court Rules of Practice and Procedure.
Notwithstanding the foregoing, Rule 60(a) provides that a case timely brought shall not be dismissed on the ground that it is not properly brought on behalf of a party until a reasonable time has been allowed after objection for ratification by such party of the bringing of the case; and that such ratification shall have the same effect as if the case had been properly brought by such party.
The Petition in this case was timely filed by attorney Gary L. Fletcher, who states therein that Margaret K. Smith is deceased. In his Motion, respondent represents that in May 2022 Mr. Fletcher advised respondent that no fiduciary had been authorized to act on behalf of the estate. Respondent also represents that attempts to obtain a copy of a death certificate, either from Mr. Fletcher or the State of Arizona, have been unsuccessful. Finally, respondent represents that he has made numerous attempts, both by telephone and mail, to communicate with Mr. Fletcher since 2022, but that he has been unresponsive. Consequently, Mr. Fletcher's views on the Motion are unknown.
If, as alleged in the Petition, petitioner is deceased, there has been no showing that this case was brought by a fiduciary entitled to institute such a case on behalf of her estate. There is also no indication in the record that any such fiduciary has been duly appointed to so act. Accordingly, we will take such action as set forth below.
Upon due consideration and for cause, it is
ORDERED that, on or before April 24, 2023, petitioner shall show cause in writing why the Motion to Dismiss for Lack of Jurisdiction should not be granted, and this case should not be dismissed for lack of jurisdiction on the ground that the Petition was not filed by Margaret K. Smith, or by someone lawfully authorized to act on her behalf, and there is no duly appointed fiduciary to ratify the Petition and prosecute this case on behalf of her estate.