Opinion
8865-23
09-25-2023
BARBARA M. STEWART, DECEASED, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Kathleen Kerrigan Chief Judge
On May 25, 2023, the petition to commence this case was filed on behalf of the deceased petitioner by Michael K. Stewart, who indicates that he is petitioner's son. The petition seeks review of a notice of deficiency issued for petitioner's 2020 tax year.
On July 25, 2023, respondent filed a Motion to Dismiss for Lack of Jurisdiction (motion to dismiss), asserting therein that: (1) Michael K. Stewart is not a fiduciary or personal representative duly appointed by a court of competent jurisdiction and legally entitled to institute a case on behalf of petitioner (decedent), and (2) therefore this Court lacks jurisdiction in this case with respect to decedent or decedent's estate.
After conferring with Michael K. Stewart, on September 18, 2023, respondent filed a Status Report, stating that: (1) no probate estate has been or will be opened with respect to the decedent's estate, (2) the decedent's estate, therefore, lacks a court-appointed fiduciary to act on its behalf, (3) the decedent's heirs at law are her two sons, Michael K. Stewart and Kenneth G. Stewart. and (4) Michael K. Stewart has no objection to the granting of respondent's motion to dismiss.
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, we are without jurisdiction as to that taxpayer. Fehrs v. Commissioner, 65 T.C. 346, 348-349 (1975). However, in relevant part, Tax Court 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 such ratification shall have the same effect as if the case had been properly brought by such party." A decedent's estate may generally be represented by someone acting in a fiduciary capacity, such as an executor, administrator, or personal representative of the decedent's estate. Rule 60(c), Tax Court Rules of Practice and Procedure, provides that "the capacity of a fiduciary or other representative to litigate shall be determined in accordance with the law of the jurisdiction from which such person's authority is derived."
Because the interests of a decedent's heir at law may be affected by any decision entered in this case, the Court will provide Kenneth G. Stewart an opportunity to object to respondent's motion to dismiss and to take whatever actions may be necessary to protect his interests.
In view of the foregoing, it is
ORDERED that, on or before October 17, 2023, Kenneth G. Stewart shall file an Objection, if any, to respondent's Motion to Dismiss for Lack of Jurisdiction. Any objection filed shall address the following matters: (1) whether Kenneth G. Stewart or any other individual intends to commence a probate proceeding and seek appointment by a court of competent jurisdiction as the personal representative of the decedent's estate, and (2) if so, whether that duly appointed representative intends to file an appropriate Motion to Substitute Parties and Change Caption (to which should be attached relevant documentation supporting that person's status as a court-appointed fiduciary with legal capacity to represent the decedent's estate before this Court) in order to prosecute this case on the decedent's behalf. Failure to file an objection may result in the granting of respondent's motion. It is further
ORDERED that, in addition to regular service, the Clerk of the Court shall serve this Order on Michael K. Stewart and Kenneth G. Stewart at their respective addresses listed in respondent's above-referenced Status Report.