Opinion
26635-21
04-12-2023
MARIO ARNEROS & NANCY ARNEROS, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Kathleen Kerrigan Chief Judge.
On July 26, 2021, the petition in this case was filed. Petitioners seek review of a notice of deficiency, dated May 3, 2021, issued to petitioners for their 2018 tax year. On August 5, 2022, petitioners filed an amended petition, signed only by petitioner Nancy Arneros, which indicates that petitioner Mario Arneros died before the petition was filed.
On April 4, 2023, respondent filed a Notice of Filing of Petition and Right to Intervene. In that notice, respondent states that petitioner Nancy Arneros has informed respondent that there is no fiduciary or representative currently legally authorized to act on behalf of petitioner Mario Arneros' estate.
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, the Court lacks jurisdiction as to that taxpayer. Fehrs v. Commissioner, 65 T.C. 346, 348-349 (1975). Because the petition was not signed by Mario Arneros and Nancy Arneros has not demonstrated that she is lawfully authorized to represent petitioner Mario Arneros' estate, it appears the Court does not at this juncture have jurisdiction with respect to Mr. Arneros.
Tax Court Rule 60(a), however, 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." Furthermore, Tax Court Rule 60(c) provides that "The capacity of a fiduciary or other representative to litigate in the Court shall be determined in accordance with the law of the jurisdiction from which such person's authority is derived." A State probate court of competent jurisdiction may appoint an individual as executor, administrator, or personal representative of a deceased person's estate. In addition, as relevant here, under Texas law a surviving spouse in appropriate circumstances may commence or continue a case on behalf of a deceased spouse. See Texas Estates Code sec. 453.003; Estate of Berry v. Commissioner, 41 T.C. 702 (1964).
Upon due consideration of the foregoing, it is
ORDERED that, on or before May 10, 2023, petitioner Nancy Arneros and respondent shall confer as to the current status of this case, including: (1) whether a probate proceeding will be commenced as to decedent Mario Arneros' estate and, if so, whether any fiduciary appointed for decedent's estate will file in this case a Motion to Substitute Parties and Change Caption (to which should be attached letters testamentary, letters of administration, or an order from a court of competent jurisdiction demonstrating that the fiduciary is legally authorized to represent decedent's estate) and (2) if a probate proceeding will not be commenced with respect to decedent's estate, whether Ms. Arneros, under Texas law as a surviving spouse. wishes to prosecute this case on behalf of decedent. It is further
ORDERED that, on or before May 24, 2023, respondent shall file a status report concerning the then-present status of this case, including the matters set forth in the preceding ordered paragraph.