Lowrance v. Commissioner

*1056OPINION.

The deficiency notice in this proceeding is dated March 3, 1927, and was addressed to E. T. Creegan, Guardian for William McKinley Clayton, Sapulpa, Oklahoma. The petition was filed April 29, 1927, and paragraph (1) thereof states: “ The petitioners are individuals, Henry Lowrance and W. H. O’Dell, Guardians for Charlie Clayton, residing at Sapulpa, Oklahoma, and Vivian Clayton, at Chicago, Illinois.” The petition not having been filed by the fiduciary, to whom the deficiency notice was mailed, nor by the legal representatives of the deceased taxpayer, order to, show cause why said appeal should not be dismissed was issued April 14, 1931, returnable May 13, 1931, with direction that all parties to the proceeding be notified.

On said date, May 13, 1931, the order to show cause was taken up for hearing. , No one appeared for petitioners, but respondent appeared by counsel and introduced in evidence a certified copy of an order in the County Court of Creek County, State of Oklahoma, by which W. H. O’Dell and Henry Lowrance were appointed special administrators of the estate of William McKinley Clayton,'deceased, who, according to the statement made in said order, died on the 29th day of April, 1924. Accompanying said order of appointment was an order allowing final account of special administrator and discharge. This order is dated the 25th day of September, 1924, and reads in part: “ Upon motion of counsel for the said W. H. O’Dell and Henry Lowrance, as such special administrators, it is by the court ordered that they be and are wholly and absolutely discharged from all further duties and responsibilities as such administrators and that the letters of special administration are hereby vacated and said trust is settled and closed and said W. H. O’Dell and Henry Lowrance and their sureties are hereby released from any and all liability to be hereinafter incurred.”

Thus it will be seen that at the time the deficiency notice was mailed and the appeal was taken, William McKinley Clayton was dead, and the special administration on his estate had been closed and the special administrators, W. H. O’Dell and Henry Lowrance, had been discharged. In fact, O’Dell and Lowrance do not appeal in this proceeding as the administrators of the estate of William McKinley Clayton, the taxpayer, but they appeal as the guardians of Charlie Clayton and Vivian Clayton, presumably the heirs at law of William McKinley Clayton, deceased.

In Martha M. Honify et al., 21 B. T. A. 379, we held that the beneficiaries and distributees of an estate are not the proper parties to prosecute an appeal from a deficiency notice addressed to the *1057administrator of the estate of a deceased taxpayer, and that the appeal must be dismissed. As we have already pointed out, the deficiency notice upon which the appeal in the instant case was taken was addressed to E. T. Creegan, Guardian for William McKinley Clayton. The appeal is taken neither by E. T. Creegan, guardian, nor by the legal representatives of the estate of William McKinley Clayton, deceased.

Under this state of facts, it is held that the Board has no jurisdiction to entertain the appeal and the proceeding will be dismissed for lack of jurisdiction. Cf. First Bond and Mortgage Co., 21 B. T. A. 1.

Reviewed by the Board.

Order will be entered accordingly.