Davison v. Comm'r of Internal Revenue, Docket No. 22643.
| Decision Date | 13 October 1949 |
| Docket Number | Docket No. 22643. |
| Citation | 13 T.C. 554 |
| Parties | ALEX H. DAVISON, DECEASED, IRENE L. DAVISON, PETITIONERS, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. |
| Court | U.S. Tax Court |
OPINION TEXT STARTS HERE
The respondent mailed to a husband and wife, residing together in Florida, a joint notice of deficiency in income tax. Four days later the husband died. Thereafter the wife filed a petition in behalf of herself and her husband, stating that no probate proceeding had been taken as to the husband's estate, but that she was the proper person to execute the petition for the said estate. Facts which, under Florida law, would make administration on the husband's estate necessary have not been shown, and, further, it does not appear that a petition to the county judge, as required by Florida law, for entry of an order that administration of the husband's estate was unnecessary was ever filed. Held, that with respect to the husband's estate, this Court does not have the proper party petitioner before it and that as to the said estate the proceeding must be dismissed for lack of jurisdiction. Joseph Hartman, Esq., for the petitioners.
Robert C. Whitley, Esq., for the respondent.
This proceeding was heard on the respondent's motion to dismiss for lack of jurisdiction in so far as it relates to the deficiency determined against Alex H. Davison, deceased. In support of his motion, it is the contention of the respondent that the petition was filed for the decedent by a person who has no authority to represent his estate.
On January 27, 1949, the respondent sent a notice to Alex H. Davison and Irene L. Davison, advising them of his determination of a deficiency of $1,719.27 in their income tax for 1945. The notice was addressed as follows:
Jacksonville, Florida.
Sir and Madam:
From the computation of the increased income upon which the deficiency was based and of the deficiency in tax itself, as shown in the deficiency notice, it appears that a single return, apparently a joint return, was filed by the parties. This return was filed with the collection for the district of Florida.
On April 22, 1949, a petition, captioned as is the instant report, was filed. In the petition, it is stated that Alex H. Davison was the husband of Irene L. Davison, that they resided at 1045 Hendricks Avenue, Jacksonville, Florida, that he died on January 31, 1949, and that no probate proceeding has been taken, nor administrator or executor appointed, for his estate. The petition contains two verifications. One is by Irene L. Davison for herself, as ‘One of Petitioners.‘ The other is by her for Alex H. Davison, as ‘One of Petitioners (Deceased).‘ In the latter verification it is recited that she was the wife of Alex H. Davison at the time of his death, that there has been no probate proceeding respecting his estate and that therefore she is the proper and legal person to sign all necessary and required papers and legal documents for the protection of his estate, including the petition.
It is contended on behalf of the petitioners that, since the respondent determined a deficiency against and sent a deficiency notice to Alex H. Davison and Irene L. Davison jointly, and that since Alex H. Davison is dead, Irene L. Davison is the proper party to petition this Court in his behalf. It is further contended that under the Florida statutes no administration of the decedent's estate and no appointment of an administrator or executor therefor was necessary; that, if such had been necessary, Irene L. Davison, as surviving spouse, would be the person first entitled to letters of administration; and that, therefore, under the Florida statutes, she was the proper party to file a petition in behalf of the decedent. The respondent denies that the showing made here establishes that administration of the decedent's estate was not required under the Florida statutes and contends that the proper party to file a petition in his behalf was a properly appointed and duly qualified administrator or executor for decedent's estate. The respondent makes no contention that the position, in so far as it relates to Irene L. Davison's liability for the deficiency, was improper in any respect.
The Florida Statutes, 1947 Cumulative Supplement, section 735.04, provide that administration of testate and intestate estates may be dispensed with (1) when the entire estate is exempt from the claims of credit of creditors under the constitution and statutes of the State of Florida, and (2) when the estate is not indebted and does not, in the judgment of the county judge, exceed in the aggregate $3,000 in value, exclusive of property exempt under the constitution and statutes of the State of Florida, and the beneficiaries agree upon a distribution of the estate without administration. Further, the statutes require that a petition be filed with the county judge for entry of an order that administration of the estate of the decedent is unnecessary. Sec. 735.05. After entry by the county judge of such an order, the petitioners for such order become personally liable, jointly and severally, for all lawful claims and demands against the estate of the decedent to the extent of the aggregate gross value of the estate. Property of the decedent which has been distributed following the entry of such order continues, in the hands of the distributees, to be liable for the debts of the decedent and for all the other claims against the estate of the decedent. The liability of the decedent's estate and those to whom it may be distributed for the obligations or liabilities of the decedent ceases after three years from the death of the decedent, unless in the meantime proceedings are taken for the enforcement of the same. Sec. 735.09. In the case of intestate estates, the surviving spouse ranks first in the statutory order of preference in the granting of letters of administration. Sec. 732.44.
In view of the foregoing, and since there is no allegation, or proof, of fact that an order has been entered by the county judge that administration of decedent's estate was not necessary, or that the decedent's entire estate was exempt from the claims of creditors, under the Florida constitution and statutes, or that the estate was not indebted and did not exceed $3,000 in value, exclusive of property exempt under the Florida constitution and statutes, and that the beneficiaries had agreed upon a distribution of the estate without administration, we are...
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Kenney v. Comm'r of Internal Revenue, Docket No. 87417.
...director for the district in which the joint return was filed. The history and purpose for this provision is set out in Alex H. Davison, 13 T.C. 554(1949). There is no showing that either Edward or Helen ever notified the district director that separate residences had been established. In f......
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Dolan v. Comm'r of Internal Revenue, Docket No. 4892-62.
...the 1939 Code provide that ‘the taxpayer’ may petition for redetermination of a deficiency. George Joannou, 33 T.C. 868 (1960);Alex H. Davison, 13 T.C. 554 (1949); Eva M. Manton, 11 T.C. 831 (1948), acq. 1949-1 C.B. 3. Since John was a separate ‘taxpayer’ within section 6213(d), it follows ......
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Fehrs v. Comm'r of Internal Revenue , Docket No. 2748-75.
...have not brought any Nebraska law to our attention which would render such an appointment unnecessary herein. We think Alex H. Davison, 13 T.C. 554, 558 (1949), is controlling. The facts are similar. A joint notice of deficiency was sent to Alex H. and Irene Davison on January 27, 1949. Ale......
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Estate of Hughey v. Commissioner
...authorized by the laws of Oklahoma to bring suit on behalf of the Estate. Fehrs v. Commissioner, supra at 349; Davison v. Commissioner Dec. 17,235, 13 T.C. 554, 558 (1949). Under Oklahoma law, a person or heir must possess Letters Testamentary issued by an Oklahoma court before such person ......