Opinion
8778-22
05-19-2023
MARGARET K. SMITH, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Travis A. Greaves Judge.
Pending before the Court is respondent's Motion to Dismiss for Lack of Jurisdiction, filed March 10, 2023. Therein, respondent requests that this case be dismissed for lack of jurisdiction on the ground that the petition was not filed by a party with capacity to sue under Rule 60(c).
Unless otherwise indicated, all Rule references are to the Tax Court Rules of Practice and Procedure, all statutory references are to the Internal Revenue Code, Title 26 U.S.C., in effect at all relevant times, and all regulation references are to the Code of Federal Regulations, Title 26 (Treas. Reg.), in effect at all relevant times,
Background
Respondent determined an income tax deficiency of $22,084 and a $4,417 penalty for petitioner's 2019 tax year. On January 10, 2022, respondent mailed petitioner a notice of deficiency. In response to the notice, attorney Gary L. Fletcher timely filed the petition to commence this case with respect to petitioner's 2019 tax year. The petition indicates that petitioner is deceased.
On March 10, 2023, respondent filed a Motion to Dismiss 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. 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. On March 28, 2023, this Court ordered petitioner to show cause why the Motion to Dismiss should not be granted. On April 24, 2023, Mr. Fletcher filed a response to the Court's Order to Show Cause asking the Court to provide an additional short period of time to identify a fiduciary entitled to institute the case.
Respondent's Motion to Dismiss was set for hearing on May 10, 2023, during the Court's May 8, 2023, Phoenix, Arizona, trial session. On May 9, 2023, Mr. Fletcher submitted a written statement in lieu of attendance at the hearing under Rule 50(c), stating "given the apparent futility of attempts to identify and engage the participation of a fiduciary with standing in these proceedings, the undersigned withdraws any substantive objection . . . to the dismissal sought by Respondent by its Motion to Dismiss."
Discussion
The Tax Court is a court of limited jurisdiction, and we may exercise our jurisdiction only to the extent authorized by Congress. See § 7442; Naftel v. Commissioner, 85 T.C. 527, 529 (1985). Where this Court's jurisdiction is duly challenged, as here, our jurisdiction must be affirmatively shown by the party seeking to invoke that jurisdiction. See David Dung Le, M.D., Inc. v. Commissioner, 114 T.C. 268, 270 (2000), aff'd, 22 Fed.Appx. 837 (9th Cir. 2001); Fehrs v. Commissioner, 65 T.C. 346, 348 (1975). To meet this burden, the party "must establish affirmatively all facts giving rise to our jurisdiction." See David Dung Le, M.D., Inc., 114 T.C. at 270; Wheeler's Peachtree Pharmacy, Inc. v. Commissioner, 35 T.C. 177, 180 (1960). Petitioner invoked our jurisdiction and therefore bears the burden of establishing jurisdiction.
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. 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, 65 T.C. at 348-49. 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); Fehrs, 65 T.C. at 348-49. However, in relevant part 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 such ratification shall have the same effect as if the case had been properly brought by such party."
Petitioner, or someone lawfully authorized to act on her behalf, has failed to show that this case was brought by a fiduciary entitled to institute such a case on behalf of her estate after reasonable opportunity to do so. There is also no indication in the record that any such fiduciary has been duly appointed to so act. Petitioner has failed to "establish affirmatively all facts giving rise to our jurisdiction." See David Dung Le, M.D., Inc., 114 T.C. at 270. Accordingly, we must grant respondent's motion and dismiss this case for lack of jurisdiction.
Upon due consideration, it is
ORDERED that the Court's Order to Show Cause, issued March 28, 2023, is made absolute. It is further
ORDERED that respondent's Motion to Dismiss for Lack of Jurisdiction, filed March 10, 2023, is granted, and this case is dismissed for lack of jurisdiction.