Fehrs v. Comm'r of Internal Revenue , Docket No. 2748-75.

• Decision Date: 18 November 1975
• Docket Number: Docket No. 2748-75.
• Citation: 65 T.C. 346
• Parties: EDWARD J. FEHRS, DECEASED AND VIOLETTE FEHRS, PETITIONERS v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT
• Court: U.S. Tax Court

65 T.C. 346

EDWARD J. FEHRS, DECEASED AND VIOLETTE FEHRS, PETITIONERS

v.COMMISSIONER OF INTERNAL REVENUE, RESPONDENT

Docket No. 2748-75.

United States Tax Court

Filed November 18, 1975.

William A. Cromartie, Douglas L. Barnes, and Francis O. McDermott, for the petitioners.

Edward J. Fehrs died on Nov. 18, 1973. Respondent mailed a joint notice of deficiency to ‘Edward J. and Violette Fehrs' on Dec. 27, 1974. No executor or administrator has been appointed for the estate of Edward J. Fehrs, and now showing has been made that Violette Fehrs is legally entitled to represent that estate under Nebraska law. Held, respondent's motion to dismiss for lack of jurisdiction as to Edward J. Fehrs, deceased, is granted.

OPINION

WILES, Judge:

The issue herein is whether we have jurisdiction with respect to Edward J. Fehrs, deceased. Upon respondent's motion to dismiss the petition with respect to Edward J. Fehrs, deceased, for lack of jurisdiction, a hearing on the motion was held and memoranda were filed by the parties.

The relevant jurisdictional facts are brief. Edward J. Fehrs (sometimes hereinafter decedent) died on November 18, 1973. He resided at that time in Douglas County, Neb.

Decedent left no property subject to probate. His jointly owned property passed to Violette as surviving spouse and his remaining assets were held in two irrevocable trusts for which probate was unnecessary.

The County Court of Douglas County has jurisdiction over the estate of a decedent who resided there at date of death. The daughters of Edward J. and Violette Fehrs, Elizabeth A. Fehrs May and Mary Jane Vlcek, were designated executrices in the final will lodged with that court, but no estate was opened and no letters testamentary or of administration were granted with respect to decedent in that court, and neither daughter ever qualified or was appointed as executrix. A proceeding was filed there, however, for the limited purpose of determining State inheritance tax with respect to decedent.

Respondent was advised of these facts; he accordingly asserted transferee liability against the two trusts created by decedent representing the joint liability in controversy herein. See docket No. 2741-75, Edward J. Fehrs Marital Trust, and docket No. 2747-75, Edward J. Fehrs Non-Marital Trust, filed concurrently with the petition herein. The United States Estate Tax Return, Form 706, filed for the deceased indicates that his assets at date of death consisted of joint tenancy property and property held in trust, for which probate was unnecessary for transfer of title. That form states that there was ‘no probate’ for Edward J. Fehrs, deceased.

A joint notice of deficiency addressed to ‘Edward J. and Violette Fehrs' was mailed on December 27, 1974. The petition herein was filed on March 26, 1975, in the names of ‘Edward J. Fehrs, Deceased, and Violette Fehrs.’ The petition was signed by attorneys for petitioners herein; no showing was made that an administrator or executor for Edward J. Fehrs had been appointed under Nebraska law.

On May 27, 1975, respondent filed a ‘Motion to Dismiss for Lack of Jurisdiction as to Edward J. Fehrs, Deceased, and to Change Caption.’ Petitioners filed a memorandum in response to that motion on June 27, 1975, and a hearing on the motion was held on July 2, 1975. At that hearing respondent's motion was denied without prejudice. It was ordered that petitioners have a representative appointed for the Estate of Edward J. Fehrs for the purpose of representing the deceased before this Court, or, in the alternative, that petitioners notify the Court why such a representative could not be appointed. On September 5, 1975, petitioners filed a supplemental memorandum in opposition to respondent's motion to dismiss which asserted that appointment of a special administrator would be ‘impractical and unnecessary.’ On September 26, 1975, respondent filed a memorandum in opposition to the supplemental memorandum.

The issue is thus whether Edward J. Fehrs, deceased, is a party over which this Court has jurisdiction. The burden of proving that this Court has jurisdiction is upon petitioner. National Committee to Secure Justice, Etc., 27 T.C. 837, 839 (1957); Louisiana Naval Stores, Inc., 18 B.T.A. 533, 536 (1929). Furthermore, it is well settled that unless the petition is filed by the taxpayer, or by someone lawfully authorized to act on his behalf, we are without jurisdiction. Consolidated Companies, Inc., 15 B.T.A. 645, 652 (1929). Rule 60, Tax Court Rules of Practice and Procedure, accordingly provides in part as follows:

(a) Petitioner: A case shall be brought by and in the name of the person against whom the Commissioner determined the deficiency * * * , or by and with the full descriptive name of the fiduciary entitled to institute a case on behalf of such person. See Rule 23(a)(1). 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. Where the deficiency of liability is determined against more than one person in the notice by the Commissioner, only such of those persons who shall duly act to bring a case shall be deemed a party or parties.

(c) Capacity: * * * The capacity of a fiduciary or other representative to litigate in the Court shall be determined in accordance with the law of the jurisdiction from which he derives his authority.

Rule 23(a)(1) provides, in part, as follows: A proper caption shall be placed on all papers filed with the Court * * * . The name of an estate or trust or other person for whom a fiduciary acts shall precede the fiduciary's name and title, as for example ‘Estate of John Doe, deceased, Richard Roe, Executor.’

Thus, in showing that all essential jurisdictional facts affirmatively appear, Wheeler's Peachtree Pharmacy, Inc., 35 T.C. 177, 180(1960); Herbert Brush Mfg. Co., 22 B.T.A. 646, 647(1931), petitioners must establish, since Edward J. Fehrs was deceased when the petition was filed, that the petition was filed by a fiduciary entitled to institute a case on his behalf.

The essential question is thus whether Violette Fehrs has fiduciary authority under Nebraska law to represent the deceased herein. Respondent contends that there is no authority under Nebraska law for Edward J. Fehrs, deceased, to be a party petitioner in the absence of the appointment of an executor, administrator, or special administrator. See generally Neb. Rev. Stat. secs. 30-302, 30-307, 30-315, 30-317, 30-318, 30-334, 30-803 (1964 Reissue): Meyer v. Meyer, 180 Neb. 379, 142 N.W.2d 922 (1966); In re Breuer's Estate, 155 Neb. 836, 54 N.W.2d 75(1952). Petitioners 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. Alex H. Davison died on January 31, 1949. A petition was filed on behalf of Irene Davison for herself and on behalf of Irene Davison for Alex H. Davison. The petition stated that Irene L. Davison was Alex H. Davison's wife at the time of his death, that there was no probate proceeding for his estate, and that she was the proper person...