Opinion
11647-21S
02-14-2022
Edward F. Susen & Kim Susen, Deceased Petitioners v. Commissioner of Internal Revenue Respondent
ORDER
Maurice B. Foley, Chief Judge.
Petitioner Kim Susen died prior to the filing of the petition commencing this case. On July 20, 2021, respondent filed a Motion To Dismiss for Lack of Jurisdiction as to Kim Susen. On September 28, 2021, respondent filed a supplement to his motion. On October 12, 2021, respondent filed another supplement to his motion. In the motion, as supplemented, respondent states that petitioner Edward F. Susen stated that he does not believe that petitioner Kim Susen's heir Natasha Morano intends to probate petitioner Kim Susen's estate; decedent's only heir is Natasha Morano; and petitioner Edward F. Susen does not object to the granting of respondent's motion. By order served October 20, 2021, the Court directed Natasha Morano to file an objection, if any, to respondent's motion. To date, Natasha Morano has failed to file an objection to respondent's motion.
It is well settled that the Court's jurisdiction over a case continues unimpaired by the death of a petitioner. Nordstrom v. Commissioner, 50 T.C. 30, 32 (1968). Pursuant to Rule 63(a), Tax Court Rules of Practice and Procedure, when a petitioner dies, "the Court, on motion of a party or the decedent's successor or representative or on its own initiative, may order substitution of the proper parties." State law generally determines who has the capacity to be substituted as a party for a decedent. Rule 60(c); Fehrs v. Commissioner, 65 T.C. 346, 349 (1975). Thus, the appointment of a personal representative, executor, or administrator by the appropriate State court having jurisdiction over the estate of the decedent is generally necessary to establish the capacity of a person to litigate on behalf of the estate. See Rule 60(c). It is well settled that, unless the petition is filed by the taxpayer, or someone lawfully authorized to act on the taxpayer's behalf, this Court is without jurisdiction. Fehrs v. Commissioner, 65 T.C. at 348-349.
Upon due consideration, it is
ORDERED that respondent's Motion To Dismiss for Lack of Jurisdiction as to Kim Susen, as supplemented, is granted in that so much of this case as relates to Kim Susen is dismissed for lack of jurisdiction. It is further
ORDERED that the caption of this case is amended to read "Edward F. Susen, Petitioner v. Commissioner of Internal Revenue, Respondent".