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Concerning refund jurisdiction, 28 U.S.C. sections 1346 and
1402 (1994) fix trial court venue where the plaintiff resides.
That also would fix venue for purposes of an appeal in a refund
proceeding. In this Court, section 7482 provides that it is the
petitioner’s residence which governs appellate venue. The term
“plaintiff” has been defined in refund case law to equate to the
executor in a case involving an estate. Except for litigation
cost recovery cases, the term “petitioner” has not been defined
by this Court in the context of a case involving an estate unless
only by way of analogy. See discussion infra.
The cases cited in the dissent to support the executor’s
designation as plaintiff in a refund proceeding treat the
executor as the party in interest or, in one case, the
responsible party. Although there are limited circumstances
where the estate’s representative may be held personally liable,
the assets of an estate are the primary source for satisfaction
of the estate’s tax liability. Admittedly, an executor must
represent the interests of the estate, but that alone, or in
conjunction with the possibility that the executor may become
personally liable, does not provide a persuasive reason to
designate the executor as the “petitioner” in this Court.
Even if the rationale of the refund cases cited by the dissent
was soundly based, I find it no more persuasive than the reasons
already expressed herein for the estate, rather than the
executor, to be recognized as the petitioner.
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