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probate and provides for the representative’s legal authority and
requirements to serve the estate. Similarly, it is the law of
the State of the decedent’s domicile that is determinative of
whether a fiduciary has capacity to represent the estate in this
Court. Rule 60(c); Patz Trust v. Commissioner, 69 T.C. 497, 500
(1977); Fehrs v. Commissioner, 65 T.C. 346, 349 (1975). It
follows that a case dismissed for lack of jurisdiction because of
the representative’s incapacity under the domiciliary State law
would logically proceed to the Court of Appeals serving the
domiciliary State.
Systemically, it is more logical to treat the estate as the
petitioner. Notices of deficiency regarding an estate are
concerned only with the estate’s tax liability.4 See Estate of
Tarver v. Commissioner, 26 T.C. 490, 498 (1956), affd. in part
and revd. in part on another issue 255 F.2d 913 (4th Cir. 1958).
Appellate venue should, accordingly, be determined with reference
to the estate and not its fiduciary.
The dissent compares the circumstances in this Court with
those in Federal tort claims, Federal diversity jurisdiction, and
4 Sec. 2203 defines the term “executor” for purposes of the
Internal Revenue Code, and sec. 2204 provides for discharge of
the fiduciary (executor) from personal liability if certain
prescribed procedures are followed. In that connection, sec.
301.6903-1(a), Proced. & Admin. Regs., requires that a fiduciary
provide notice of the fiduciary’s relationship to a district
director. The referenced procedural regulation also indicates
that “the tax or liability is ordinarily not collectible from the
personal estate of the fiduciary but is collectible from the
estate of the taxpayer”.
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