Opinion
3001-20
09-07-2023
LARRY W. COLE, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Diana L. Leyden, Special Trial Judge.
This case is calendared for trial at the October 2, 2023, Oklahoma City, Oklahoma, Trial Session of the Court. The Petition in this case was timely filed on February 18, 2020, in response to a notice of deficiency dated November 13, 2019.
On August 30, 2023, respondent filed a Motion to Dismiss for Lack of Prosecution (motion to dismiss) stating he had been advised that petitioner died on January 6, 2023, which date is after the filing of the Petition. Attached to the motion to dismiss as Exhibit A is a copy of petitioner's death certificate. Respondent further states that (1) no representative or fiduciary is currently authorized to act on behalf of petitioner's estate, (2) that there is no will to be submitted for probate, (3) that there will not be an authorized representative available to act on behalf of petitioner's estate, and (4) listed Jeanne Cole (Wife), Michael Cole (Son), and Jina Crockett (Daughter), along with their addresses as petitioner's heirs. Petitioner's counsel has no objection to the granting of this motion to dismiss.
Although the record indicates that decedent petitioner's heirs are aware of this case, the Court nonetheless concludes it is appropriate to confirm that the heirs have considered whether their interests would be adversely affected by entry of default and dismissal. Pursuant to Rule 63(a), when a petitioner dies, "the Court, on its own or on motion of a party or the decedent's successor or representative, may order substitution of the proper parties." Pursuant to Rule 60(c), a decedent's estate may be represented by someone acting in a fiduciary capacity such as an executor, administrator, or personal representative of the decedent's estate. Local law is applied to determine who has the capacity to be substituted as a party. Fehrs v. Commissioner, 65 T.C. 346, 349 (1975). Although it is well settled that the Court's jurisdiction over a case continues unimpaired by the death of the petitioner, Nordstrom v. Commissioner, 50 T.C. 30 (1968), it nonetheless must be established that a person lawfully authorized to act on behalf of the deceased petitioner's estate has authorized the continued prosecution of the case. Otherwise, entry of default and dismissal may be appropriate.
On August 31, 2023, respondent filed a Motion for Continuance (motion) stating that on August 16, 2023, he was informed by petitioner's counsel that she recently learned that petitioner had passed away. Respondent further states that on August 18, 2023, petitioner's counsel indicated that no probate case has been filed and that petitioner's heirs do not have plans to file a probate case. Petitioner's counsel does not object to the granting of this motion. Upon due consideration and for cause, it is
ORDERED that the caption in this case is amended to read: "Larry W. Cole, Deceased, Petitioner, v. Commissioner of Internal Revenue, Respondent". It is further
ORDERED that, on or before October 4, 2023, any heir at law or other successor in interest who wishes to prosecute this case on petitioner's behalf shall file with this Court a motion for substitution of proper party, or otherwise make his or her intentions known by written notice to the Court. It is further
ORDERED that respondent's Motion to Dismiss for Lack of Prosecution, filed August 30, 2023, will be held in abeyance. It is further
ORDERED that respondent's Motion for Continuance, filed August 31, 2023, is granted, and this case is stricken for trial from the Court's October 2, 2023, Oklahoma City, Oklahoma, trial session and is continued. It is further
ORDERED that jurisdiction of this case is retained by the undersigned. It is further
ORDERED that, on or before November 1, 2023, respondent shall file a status report detailing the then-present status of the case. It is further
ORDERED that, in addition to regular service, the Clerk of the Court shall serve a copy of this Order upon Jeanne Cole, Michael Cole, and Jina Crockett, at the addresses stated in respondent's motion to dismiss.
Decedent petitioner's heirs at law are hereby advised that a failure to respond to this Order may result in entry of decision in favor of respondent in the full amount of the additions to tax and penalties determined in the notice of deficiency.