Opinion
17213-23L
09-30-2024
TIMOTHY CONGEMI & DARLENE KOZLOWSKI, DECEASED, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Kathleen Kerrigan Chief Judge
On October 31, 2023, a petition to commence the above-docketed matter was filed with the Court. Attached were notices of determination concerning collection action for the taxable year 2017 issued to Timothy Congemi and Darlene Kozlowski, dated October 3, 2023, and the petition was captioned in the names of, and signed by, both individuals. Subsequently, on August 5, 2024, respondent filed a status report advising that Darlene Kozlowski had died on January 9, 2024, after the filing of the petition in this case, and that no probate proceeding had been opened or representative appointed on behalf of the estate.
At that juncture, the Court by Order served August 6, 2024, directed that: "respondent shall file an appropriate motion in accordance with Nordstrom v. Commissioner, 50 T.C. 30 (1968). The Court would also expect respondent and petitioner Timothy Congemi simultaneously to file submit a corresponding Stipulation of Settled Issues."
Thereafter, and somewhat inexplicably, respondent on September 6, 2024, filed a Motion to Dismiss for Lack of Jurisdiction as to Darlene Kozlowski, Deceased, and To Change Caption, and respondent and Timothy Congemi filed a First Stipulation of Facts. Neither corresponded to the Court's directive. More critically, as explained by the Court in an Order served September 10, 2024, denying the jurisdictional motion and extending the time for a proper motion under Nordstrom v. Commissioner, 50 T.C. 30 (1968), "the circumstances of this proceeding do not involve an absence of jurisdiction over either party, nor can one party be eliminated. Rather, the situation would appear to implicate a lack of prosecution where a single decision must be entered resolving the case as to both parties, pursuant to the procedures set forth in Nordstrom v. Commissioner, 50 T.C. 30 (1968)."
September 27, 2024, then saw the filing by respondent of a Motion to Dismiss for Lack of Prosecution as to Darlene Kozlowski, Deceased, and a Motion To Clarify Order, both of which reflect a continued confusion with respect to the application of the procedures under Nordstrom v. Commissioner, 50 T.C. 30 (1968). Although the Motion To Dismiss for Lack of Prosecution is the appropriate approach in these circumstances to address the death of Darlene Kozlowski, the motion filed is incomplete. It fails to set forth the decision that respondent seeks to have entered as to Darlene Kozlowski. Hence, to seek an objection or response from the heirs at law, as counseled by Nordstrom v. Commissioner, 50 T.C. 30 (1968), would be illusory at this point.
As regards the Motion To Clarify Order, respondent states: "Unfortunately, respondent is unclear of what information is needed for inclusion by the parties in their stipulation of settle [sic] issues that was ordered to be filed by the Court in light of the circumstances of this case. At this time, there are currently no settled issues between respondent and Petitioner Timothy Congemi." It seems that there may still exist an absence of understanding as to how a joint case in which there is a lack of prosecution situation involving one of two petitioners is closed, despite the Court's comments in the September 10, 2024, Order. To wit, a dismissal for lack of prosecution does not eliminate the deceased party from the case or caption. Rather, a Motion To Dismiss for Lack of Prosecution is granted via an Order of Dismissal and Decision that enters a decision as to all parties in the case. As only one decision can be entered in any given case, the decision must set forth the resolution as to both parties (which is frequently the same, i.e., dismissing one petitioner for lack of prosecution, then setting forth what is decided as to "petitioners"). Hence, to clarify, the record must establish the decision to be entered as to both petitioners before a Motion To Dismiss for Lack of Prosecution as to one party may be granted and the case thereby closed.
Accordingly, the premises considered, it is
ORDERED that respondent's Motion To Clarify is granted in that respondent is advised as stated above. It is further
ORDERED that, on or before January 31, 2025, respondent shall file a supplement to the Motion to Dismiss for Lack of Prosecution as to Darlene Kozlowski, Deceased, setting forth the decision that respondent moves therein be entered against Darlene Kozlowski. The Court would also expect respondent and petitioner Timothy Congemi simultaneously on that January 31, 2025, date to file a corresponding Stipulation of Settled Issues, or, if a settlement has not been reached as to Timothy Congemi, a status report so advising the Court.