Respondent determined deficiencies in petitioner's Federal income taxes as follows:
Year Deficiency 1974 ............... $1,494.07 1975 ............... 2,334.61 1976 ............... 3,272.00
No evidence as such having been introduced at trial, our report is necessarily based upon the pleadings and motions filed and the representations of petitioner's widow and daughter, who appeared on his behalf at the call of the calendar.
In July of 1978, when he filed his petition in this case, petitioner James E. Beatty resided in Houston, Texas. James E. Beatty died on November 5, 1978.
Although his tax returns are not in the record, it appears from the notice of deficiency that petitioner filed separate returns for the years in controversy in which he included one-half of his wages earned, the other half having been the income of his wife Georgia Beatty, now his widow, under Texas community property law. The major adjustment in petitioner's taxable income made by respondent for each year was to increase the gross income petitioner reported by one-half of the income of his wife. The amounts of such increases were $6,368.79, $8,433.49, and $11,241.48 for the years 1974, 1975, and 1976, respectively. Respondent determined these amounts in the absence of adequate records because Georgia Beatty did not report any income for those years and has steadfastly refused to permit respondent any access to her records on the ground that she constitutionally objects to Federal income taxation.
When this case was called from the calendar of the Houston session on September 24, 1979, Jennifer Warren (hereinafter Jennifer) appeared before the Court stating that she was the daughter of James E. Beatty, deceased, and that she had been authorized by his family to represent the estate in this case. Jennifer further stated that she had an affidavit evidencing her authority. Jennifer admitted she had not been appointed by a court as executor or administrator of the estate. Petitioner's widow Georgia Beatty was present and indicated to the Court that no probate or administration of James Beatty's estate had taken place because the family had been advised by an attorney that none was necessary. However, the Court informed Jennifer that her request to represent the estate in this proceeding would not be honored without her having been duly authorized by a local court of competent jurisdiction. See Rule 60(c), Tax Court Rules of Practice and Procedure. The Court then suggested both to Jennifer and to Georgia Beatty that perhaps the family should rethink their decision.
When the case was called for trial the next day, there was no appearance on behalf of the estate. Jennifer, however, left three documents for the clerk of the Court and sent a mailgram and a telegram to the Court, all of which were received into the record. The thrust of each of the documents filed is that the notice of deficiency and Federal income taxation in general are both illegal and unconstitutional.
Since the trial date both respondent and Georgia Beatty, on behalf of the estate, have filed memoranda discussing Jennifer's capacity, the need for administration of the estate under local law, and respondent's motion to dismiss. Apparently, there still has been no probate or administration of petitioner's estate.
By our order dated January 23, 1980, we reaffirmed our denial of Jennifer's request to represent petitioner's estate in this proceeding. However, our own research had convinced us that Georgia Beatty's claim
Thus, where there has been no administration of a married person's estate, under Texas law the surviving spouse possesses all the rights of an administrator with respect to the community property.
On our own motion, we have reexamined the question whether Jennifer had the capacity under local law to represent petitioner's estate as an heir. We have done so because our independent research has disclosed that, under Texas law, Jennifer and her family were not as ill advised as we had originally believed. For the reasons that follow, we shall vacate our earlier order denying her request to represent the estate as an heir.
To begin with, it is well settled that a petitioner's death does not divest this Court of jurisdiction over his income tax liability for years already in issue. Nordstrom v. Commissioner [Dec. 28,904], 50 T.C. 30 (1968); Yeoman v. Commissioner [Dec. 21,391], 25 T.C. 589 (1955). Our jurisdiction is based on the petition, which here was timely filed by petitioner while he was alive. Sec. 6213(a);
Where the petitioner has died, the Court generally will order that his representative or successor be substituted as the proper party. Rule 63(a), Tax Court Rules of Practice and Procedure; see also Rule 23 (a), id. The legal capacity in this Court of a representative is controlled by Rule 60(c), id., which provides in part:
In short, we apply local law to determine who may speak for a decedent's estate in this Court. Fehrs v. Commissioner [Dec. 33,518], 65 T.C. 346 (1975); Estate of Berry v. Commissioner, supra. See sec. 601.509, Statement of Procedural Rules ("a power of attorney or a tax information authorization is not required by the Revenue Service in cases docketed in the Tax Court.").
Because at common law all suits involving torts or personal property abated upon the plaintiff's death, the survival of such actions, and the proper parties thereto, is in every state controlled by statute. 1 Am. Jur. 2d, Abatement, Survival, and Revival secs. 51, 52, 113 (1962); 1 C.J.S., Abatement and Revival secs. 132, 133 (1936). Under the laws of most states for a representative of an estate to appear in court, he first must be authorized by that court having jurisdiction over the estate. 1 Am. Jur. 2d, supra, sec. 121. Therefore, members of the family of a deceased taxpayer have normally not been permitted to file petitions in this Court without being duly authorized. Fehrs v. Commissioner [Dec. 33,518], 65 T.C. 346 (1975); Davison v. Commissioner [Dec. 17,235], 13 T.C. 554 (1949). Compare Estate of Arnett v. Commissioner [Dec. 23,235], 31 T.C. 320, 330
Rule 151 of the Texas Rules of Civil Procedure provides:
Rule 151 reflects longstanding Texas practice. For instance, in the early case of Gayle v. Hoffman, 29 Tex. 1 (1867), it was held:
Essentially similar under Rule 151, Tex. R. Civ. P., are Dickerson v. State, 169 S.W.2d 1005 (Tex. Civ. App. 1943), and Clark v. Turner, 505 S.W.2d 941 (Tex. Civ. App. 1974). Texas's liberal rules permitting the heirs of a decedent, as well as his surviving spouse, to speak for the estate without formal authorization are part and parcel of Texas's exceptionally strong public policy disfavoring unnecessary administration.
Since Jennifer's affidavit brings her within the scope of Rule 151,
We remain concerned, as we were when we originally denied Jennifer's request to appear in this case, about the fact that Jennifer's request is to appear in a representative capacity. We are concerned because the decision eventually reached covering the taxable years here in issue, while appealable, may not otherwise be relitigated once our decision becomes final. Sec. 6512(a); Bowser v. Commissioner, 40 AFTR 2d 77-5531, 78-1 USTC ¶ 9102 (3d Cir. 1977). In other words, our decision will be final not only as to Jennifer but also as to the other heirs to petitioner's estate who are not before the Court. Our concern is heightened in this particular case by the indications in the record that Jennifer intends to pursue so-called "constitutional" claims which are likely to bear little fruit. For these reasons we think it appropriate to require Jennifer, should she again appear for the estate in this case, to be ready to make some showing that the other heirs have been made aware of these proceedings. See generally Nordstrom v. Commissioner, supra.
In accordance with the foregoing, respondent's motion to dismiss for lack of prosecution will be denied, and our order denying Jennifer's request to represent petitioner's estate will be vacated. This case will be restored to the general docket and rescheduled for trial.
An appropriate order will be entered.
Texas has almost from its beginning looked upon the administration of a decedent's estate as a proceeding to be undertaken or required only if absolutely necessary. Several methods for its avoidance or for its simplification have long been a part of Texas' jurisprudence. * * *
* * * It is probably not too much to venture the statement that Texas has gone farther than any American common-law state in dispensing with the necessity of full administration in one way or another.