Opinion
21340-22S
04-03-2024
WENNERS BALLARD & EARNESTINE BALLARD, DECEASED, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER AND DECISION
Adam B. Landy Special Trial Judge
On December 11, 2023, the Commissioner filed a Motion to Dismiss for Lack of Prosecution as to Earnestine Ballard (Motion). The Commissioner states that the surviving spouse does not object to the Court granting the Motion. On April 2, 2024, the parties filed a Joint Status Report further detailing the basis of settlement.
The Court may dismiss a case at any time and enter a decision against the petitioner for failure to properly prosecute his case, failure to comply with the Rules of this Court or any order of the Court, or for any cause which the Court deems sufficient. Rule 123(b); Bauer v. Commissioner, 97 F.3d 45, 48-49 (4th Cir. 1996); Stearman v. Commissioner, 436 F.3d 533, 535-37 (5th Cir. 2006), aff'g, T.C. Memo. 2005-39; Edelson v. Commissioner, 829 F.2d 828, 831 (9th Cir. 1987), aff'g, T.C. Memo. 1986-223. When a petitioner dies, the Court generally will order that a representative or successor be substituted as the proper party. Rule 63(a). If no representative of the decedent comes forward to prosecute the decedent's case before this Court, the procedural means for bringing the case to a close is a motion to dismiss for failure to properly prosecute the case. See Nordstrom v. Commissioner, 50 T.C. 30, 32 (1968).
Unless otherwise indicated, Rule references are to the Tax Court Rules of Practice and Procedure.
The Court has been informed that there is no representative or fiduciary willing to act on behalf of Mrs. Ballard's Estate under Virginia law. Consequently, the Court will dismiss this case for lack of prosecution.
Upon due consideration of the Commissioner's Motion, the parties' Joint Status Report, and for cause, it is
ORDERED that the Commissioner's Motion to Dismiss for Lack of Prosecution as to Earnestine Ballard, filed December 11, 2023, is granted, and this case is dismissed on the stated ground as to the specific petitioner. It is further
ORDERED AND DECIDED that there is a deficiency in income tax due from petitioners for the taxable year 2019 in the amount of $3,101.00, and there is no penalty due from petitioners for the taxable year 2019 under I.R.C. § 6662.