Opinion
8207-24S
08-06-2024
SAMUEL E. WELLMAN & JANICE S. WELLMAN, DECEASED, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
KATHLEEN KERRIGAN CHIEF JUDGE.
On May 21, 2024, the Petition in this case was filed on behalf of petitioner Janice S. Wellman by Counsel Doris L. Gowan. The Petition does not bear the original signature of petitioner Janice S. Wellman. The Petition states that Janice S. Wellman died before the Petition was filed.
On July 8, 2024, respondent filed a Motion to Dismiss for Lack of Jurisdiction as to and to Change Caption. The motion seeks to dismiss petitioner Janice S. Wellman. In the motion, respondent states that neither counsel Doris L. Gowan nor petitioner Samuel E. Wellman is a representative or fiduciary authorized to act on behalf of petitioner Janice S. Wellman. In the motion, respondent stated that petitioner Samiel E. Wellman does not object to the granting of this motion as to petitioner Janice S. Wellman.
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 and to Change Caption is granted in that so much of this case as relates to Janice S. Wellman is dismissed for lack of jurisdiction. It is further
ORDERED that the caption of this case is amended to read "Samuel E. Wellman, Petitioner v. Commissioner of Internal Revenue, Respondent".