Opinion
7594-22S
09-14-2022
THOMAS M. WHITE, DECEASED, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Kathleen Kerrigan, Chief Judge
Pending before the Court is petitioner's Motion to Substitute Parties and Change Caption, filed August 18, 2022, requesting that the Court recognize Lawrence N. White as the executor for the estate of Thomas M. White, Deceased, and as a duly appointed fiduciary entitled to prosecute this case on the decedent's behalf. By Order served August 23, 2022, the Court directed petitioner to file a supplement to the Motion and to attach thereto a copy of the letters testamentary, letters of administration, or probate court order duly appointing Lawrence N. White as the executor for the decedent's estate.
On September 9, 2022, petitioner electronically filed a document designated as a Response to the Court's Order served August 23, 2022. Petitioner attaches thereto a small estate affidavit by Lawrence N. White and asserts in the Response that the affidavit "is the equivalent of Letters Testamentary for small estates in Oregon." Petitioner requests that the Court accept the foregoing "as sufficient proof that Lawrence N. White is the executor for the Estate of Thomas M. White."
In general, Rule 60(a) provides that a case shall be brought by the individual 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, 348-349 (1975). A decedent's estate generally may be represented by someone acting in a fiduciary capacity, such as an executor, administrator, or personal representative. See id. at 349-351. Pursuant to Rule 60(c), the capacity of a fiduciary or other representative to litigate in this Court is determined in accordance with the law of the jurisdiction from which such person's authority is derived.
All Rule references are to the Tax Court Rules of Practice and Procedure. See www.ustaxcourt.gov/rules.html.
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.
Upon review of petitioner's filings, and the statutory scheme governing Oregon's small estate procedures, see ORS 114.505 to 114.560, it does not appear that those procedures provide the affiant (in this case a "claiming successor") any powers relevant to this proceeding; indeed, the statute appears to be devoid of any references to the affiant having the capacity to commence or continue litigation on behalf of a decedent's estate. Moreover, petitioner's filings do not cite any other statutory provision or caselaw that indicates that an affiant, under the Oregon small estate procedures, has the capacity to commence or continue litigation on behalf of a decedent's estate. Consequently, those filings fail to establish that Lawrence N. White has the capacity to litigate in this Court on behalf of the decedent.
In view of the foregoing, and the fact that at this time it appears the Court lacks jurisdiction in this proceeding, we will provide the decedent's heirs at law an opportunity to have a fiduciary duly appointed to represent the decedent's estate (taking into consideration the provisions of Rule 60) in the event those heirs wish to prosecute this case on behalf of the decedent.
Upon due consideration and for cause, it is
ORDERED that petitioner's above-referenced Response is recharacterized as petitioner's Supplement to Motion to Substitute Parties and Change Caption. It is further
ORDERED that petitioner's above-referenced Motion, as supplemented, is denied. It is further
ORDERED that, on or before November 14, 2022, petitioner's heirs at law, Lawrence N. White, Greg White, and Russell N. White, (1) shall advise the Court in writing whether they wish to prosecute this case on behalf of the decedent and, if so, (2) shall provide the name of the executor, administrator, personal representative, or other like duly appointed fiduciary for the decedent's estate, attaching thereto a copy of the letters testamentary, letters of administration, or probate court order issued by a state court of competent jurisdiction duly appointing such fiduciary to represent the estate in such a capacity. It is further
ORDERED that, in addition to regular service, the Clerk of the Court shall serve a copy of this Order on Lawrence N. White, Greg White, and Russell N. White at the respective mailing addresses listed for them on page six of petitioner's above-referenced Supplement to Motion to Substitute Parties and Change Caption.