PANUTHOS, Special Trial Judge:
This case is before the Court on respondent's Motion to Dismiss for Lack of Jurisdiction.
The First National Bank and Trust Company of Muskogee, Oklahoma (hereinafter Bank) in its capacity as fiduciary of the Estate, filed a fiduciary income tax return for the period ended January 31, 1983. The notice of deficiency, dated April 15, 1986, determined a deficiency in Federal income tax for the period ended January 31, 1983 in the amount of $2,965.87. The primary adjustment is the disallowance of a claimed partnership loss. A timely petition was filed with the Court on July 15, 1986.
The facts do not appear to be in dispute. The Bank served as Executor of the Estate. The Estate was administered under the laws of the State of Oklahoma. Under applicable Oklahoma law, Rose was declared the sole legatee and devisee of the Estate. Pursuant to a Decree of Distribution, dated June 22, 1983, Rose received the net assets of the Estate. Subsequently, the Bank filed a final accounting and showed there were no further acts for the Bank to perform as Executor. On August 31, 1983, the District Court of Haskell County, Oklahoma, declared the Estate to be distributed. The court further declared that the Bank, as Executor, was fully discharged from all further duties. The Letters Testamentary were thereby vacated. The notice of deficiency was sent to the Bank, as Executor, on April 15, 1986.
Rose emphasizes that since he is the sole legatee and devisee of the Estate, he will bear the burden of any deficiencies found to be due and owing and, therefore, is a proper party. In the alternative, Rose argues that respondent's statutory notice was invalid. Respondent's position is that Rose has not established that he is authorized to act on behalf of petitioner and, therefore, is not the proper party to sign the petition or otherwise represent the Estate.
We must decide whether Rose is a party over whom this Court has jurisdiction. The burden of proof is on petitioner. Harold Patz Trust v. Commissioner [Dec. 34,795], 69 T.C. 497, 503 (1977). It is well settled that the Court is 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).
Under Oklahoma law, a person or heir must possess Letters Testamentary issued by an Oklahoma court before such person or heir can legally represent the deceased or his estate. Okla. Stat. Ann. tit. 84, section 17 (West 1970). There is no indication that Rose has ever possessed such Letters Testamentary. Rose, therefore, cannot petition this Court in the name of the Estate.
Neither can Rose, as the party in possession of the Estate's assets, be considered an "executor" under Internal Revenue Code section 2203. That section states:
Since the deficiency in the instant case involves the Federal income tax of the Estate and not the Federal estate tax, section 2203 is inapplicable. Gump v. Commissioner [42-1 USTC ¶ 10,125], 124 F.2d 540, 544 (9th Cir. 1941), affg. [Dec. 11,232] 42 B.T.A. 197 (1940).
Rose's second argument concerns Subtitle F of the Internal Revenue Code, which addresses Code procedures and the administration of the Internal Revenue laws. Petitioner states that respondent's statutory notice is invalid, because the statutory notice was sent to the Bank after the Bank had been discharged as Executor of the decedent's Estate. Petitioner cites Gillespie v. Commissioner [Dec. 15,513(M)], a Memorandum Opinion of this Court dated December 5, 1946 (5 T.C.M. 1028, 15 P-H Memo. T.C. ¶ 46,285). In Gillespie, the Court held that a statutory notice was invalid when it was sent to a fiduciary after the Internal Revenue Service had received written notice of the discharge of the fiduciary. The taxpayer in Gillespie had notified the Internal Revenue Service of his appointment as a fiduciary of the Estate in 1941, as well as of his discharge as a fiduciary in 1943. Gillespie v. Commissioner, supra 5 T.C.M. at 1029, 15 P-H Memo. T.C. ¶ 46,285 at 46-989.
Notice to the Secretary of fiduciary capacity and discharge is required. Section 6903(a). The manner of notice is set forth in regulations prescribed by the Secretary. Section 6903(b). Section 301.6903-1(b), Proced. and Admin. Regs., states in part that notice of termination must be in writing and supplemented by satisfactory evidence of the termination of the fiduciary capacity. In the present case, although the Bank was discharged of its fiduciary relationship by the local Oklahoma court, no written notice of termination was given to respondent. Therefore, the notice was properly sent to the Bank as fiduciary. Sanborn v. Helvering [40-1 USTC ¶ 9173], 108 F.2d 311 (8th Cir. 1940), [Dec. 10,656] affg. 39 B.T.A. 721 (1939); Fehrs v. Commissioner, supra at 351; Krueger v. Commissioner [Dec. 28,600], 48 T.C. 824, 832 (1967).
In the Response, filed December 3, 1986, the Bank attempted to amend the petition. This amended petition was not filed within the required 90-day period following the issuance of the statutory notice. Rule 13(c); section 6213. However, a party is permitted to ratify a timely though imperfect petition if the party proves that an individual authorized to act on its behalf filed the original timely petition. Holt v. Commissioner [Dec. 34,269], 67 T.C. 829, 832-833 (1977); Fletcher Plastics, Inc. v. Commissioner [Dec. 33,139], 64 T.C. 35, 37 (1975); Carstenson v. Commissioner [Dec. 31,230], 57 T.C. 542 (1972). Since the Bank has not proved that it authorized Rose to file the original petition, no ratification has taken place.
For the reasons stated herein, respondent's Motion to Dismiss for Lack of Jurisdiction will be granted.
An appropriate order will be entered.