This case is before us on respondent's motion to dismiss the petition with respect to H. Lee Clifton, deceased, for lack of jurisdiction on the ground that the petition was not filed by the proper party. A hearing on this motion was held on June 1, 1981, in Denver, Colorado.
On June 17, 1980, respondent mailed a statutory notice of deficiency to "Mr. H. Lee Clifton and Mrs. Mary L. Clifton, 4606 Ramsey Avenue, Austin, Texas 78756," wherein respondent determined a $636.34 deficiency in their 1978 Federal income tax and imposed an addition to tax of $31.84 under section 6653(a).
On October 24, 1980, respondent filed a Motion to Dismiss for Lack of Jurisdiction as to H. Lee Clifton, Deceased, by Glenn E. Clifton and to Change Caption. On December 1, 1980, petitioners filed an objection to respondent's motion to dismiss asserting that Mary L. Clifton had appointed Glenn E. Clifton her attorney to "act in all matters dealing with tax matters, probate matters, distribution of property and any other items pertaining to the Estate of her late husband H. Lee Clifton." Attached to the objection was the power of attorney which was executed on October 1, 1980, in Travis County, Texas. At the hearing on respondent's motion, petitioners were represented by counsel, but no evidence was offered in support of their objection to the motion. At the close of the hearing, the Court took respondent's motion under advisement and instructed the parties that the record would be held open until July 31, 1981, for petitioners to submit any additional information to support the Court's jurisdiction over the decedent. No additional information was submitted to the Court by petitioners.
We must decide whether H. Lee Clifton, deceased, is a party over which this Court has jurisdiction. The burden of proving that this Court has jurisdiction is upon petitioners. Harold Patz Trust v. Commissioner [Dec. 34,795], 69 T.C. 497, 503 (1977). It is well settled that we are without jurisdiction unless the petition is filed by the taxpayer or someone authorized to act on his behalf. Fehrs v. Commissioner [Dec. 33,518], 65 T.C. 346, 348 (1975). Accordingly, Rule 60, Tax Court Rules of Practice and Procedure,
Rule 23(a)(1) provides, in part, as follows:
Thus, under our rules, local law determines who is entitled to represent a decedent's estate before this Court. Consequently, petitioners must establish that the petition was filed by a "fiduciary or other representative" authorized to institute a case on behalf of the estate of H. Lee Clifton under the law governing the disposition of his estate. Fehrs v. Commissioner, supra at 349.
We must hold that petitioners have failed to prove that H. Lee Clifton, deceased, is a party over which this Court has jurisdiction. Initially, since petitioners did not make any allegation as to the law governing the disposition of the decedent's estate, we are unable to determine the proper law to apply in deciding who had the capacity to file the petition on behalf of the decedent.
Under Texas law, the administration of a decedent's estate is allowed only when necessary. Secs. 88, 178, Texas Probate Code Ann. (Vernon's 1956); Pitner v. United States [68-1 USTC ¶ 12,499], 388 F.2d 651, 655-656 (5th Cir. 1967). See also Basye, "Streamlining Administration Under the New Texas Probate Code," 35 Tex. L. Rev. 165 (1956). Therefore, Texas law permits a decedent's heirs at law to maintain a suit on behalf of his estate without formal authorization during the period allowed for
The record does not show whether H. Lee Clifton died testate or intestate, nor is there any indication as to whether or not an executor or administrator was ever appointed. Moreover, petitioners failed to even allege that no administration of the estate was pending or necessary. Finally, the record does not show that Mary L. Clifton and Glenn E. Clifton were the decedent's sole heirs or that they were empowered to represent all of his heirs. Under these circumstances, we cannot find that either Mary L. Clifton or Glenn E. Clifton had the authority to represent the decedent under Texas law. Thus, the power of attorney that Mary L. Clifton gave to Glenn E. Clifton, has no bearing on our jurisdiction over the decedent.
Accordingly, respondent's motion to dismiss for lack of jurisdiction as to H. Lee Clifton, deceased, and to change caption must be granted.
An appropriate order will be issued.