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and an opportunity to become a party.” Our Court’s Rule 325--
which we promulgated to answer that section’s call--requires the
IRS to serve notice that a petition has been filed "on the other
individual filing the joint return” no later than 60 days from
the date that the petition itself was served. The Commissioner
overlooked this obligation here until the case was already on a
trial calendar. Then he learned that Robert Fain had died in
2002.
Discussion
The first question we have to answer is whether Robert’s
right to intervene survives his death. There's no clear answer
in the Code or regulations, so we rely on analogy, some
background principles of law, and a nod to reasonableness. We
start with the language of section 6015(e)(4), which gives a
nonrequesting spouse the unconditional right to “become a party.”
We have already held that this means that he has a right to
intervene within the meaning of rule 24(a)(1) of the Federal
Rules of Civil Procedure. Van Arsdalen v. Commissioner, 123 T.C.
135, 143 (2004). And it is generally the case that a right to
intervene passes to a decedent’s estate. See, e.g., Salt River
Pima-Maricopa Indian Cmty. v. United States, 231 Ct. Cl. 1033
(1982). An estate’s right to intervene in some cases does not,
of course, imply a general rule that all rights to intervene sur-
vive death. But Franklin observed long ago that nothing in life
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Last modified: November 10, 2007