concurring: I agree with the majority’s holding. I am compelled, however, to write separately to address Judge Fárker’s dissenting view that appellate venue depends on the estate’s representative’s residence, rather than the domicile of the decedent. The identity of the petitioner1 in a case involving an estate is a question of some moment and one that this Court has not yet addressed with any particularity.
The dissenting opinion contains the view that an appeal in this case lies in the estate’s representative’s appellate venue (the Court of Appeals for the Seventh Circuit), and, therefore, we are not bound to follow the holding of the estate’s appellate venue (the Court of Appeals for the Eighth Circuit). Were it necessary to reach this question of first impression,2 I believe the better view is that the estate is the petitioner, and, hence, under section 7482(b)(1)(A) venue for an appeal in this case would be in the place of the estate’s probate and/ or the decedent’s domicile at the time of death (the Court of Appeals for the Eighth Circuit).
The dissent expresses the belief that the estate’s representative should be considered the petitioner. As a matter of habit and practice, however, this Court most often refers to and treats a decedent’s estate as the petitioner in an estate tax case. See, e.g., Estate of Bond v. Commissioner, 104 T.C. 652 (1995); Estate of Robertson v. Commissioner, 98 T.C. 678, 679 (1992), revd. on another issue 15 F.3d 779 (8th Cir. 1994); Belcher v. Commissioner, 83 T.C. 227, 228 (1984); Estate of McElroy v. Commissioner, 82 T.C. 509, 510 (1984). Consequently, the fiduciary is commonly referred to as the person by or through whom an estate acts. See Rule 24(b). Any claim that may be pursued is not personal to a fiduciary and is intrinsically part of the rights and assets that compose the estate, which exists for the benefit of its beneficiaries and creditors.
~ in addition, by choosing an estate’s representative as the petitioner, the dissent would open the way for a profound and deleterious side effeeWforum shopping.3 If the estate is treated as the petitioner, forum shopping is minimized because a decedent’s domicile is fixed at death. It is also significant that the law of the decedent’s domicile governs an estate’s 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 rép-resent 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 Federal tax refund cases.5 The dissent expresses the belief that the U.S. Courts of Appeals for the Seventh and Eighth Circuits would look to these cases and ascertain appellate venue based on the residence of the estate’s representative.6
I respectfully disagree because for venue purposes: (1) We are not dealing with refund, diversity jurisdiction, or tort claims; (2) we are not compelled to follow the rationale of refund, diversity, or Federal tort claims cases; and, significantly, (3) the dissent relies on the diversity cases despite Congress’ having enacted legislation that effectively “overrules” them.
Concerning the weight bo be afforded to diversity jurisdiction precedent, 28 U.S.C. sec. 1332 was amended in 1988 to ensure that the citizenship of represented parties will be determined according to the citizenship of the represented party — not the fiduciary. 134 Cong. Rec. 31051 (1988). Congress was concerned with attorneys’ using out-of-State fiduciaries solely to create diversity of citizenship for access to the Federal courts. Id. at 31055.
Furthermore, there are important differences in a court’s focus with respect to questions of appellate venue versus questions of diversity of citizenship in order to qualify for Federal jurisdiction. For diversity jurisdiction purposes, a representative’s citizenship may be determinative of the threshold question of whether a party can have access to Federal courts. Prior to the 1988 legislation, by acknowledging the representative’s citizenship, courts could ensure that a Federal forum was available to an estate if the representative’s citizenship was different from that of any other litigant.
The residence of a fiduciary for purposes of an appeal from this Court is not a threshold question that would otherwise be a prerequisite to Federal court access. The focus of our inquiry involves which Court of Appeals is the most appropriate one to address an estate’s appeal from this Court.7 In making this choice we must consider that circuit’s nexus to the subject matter, the court’s familiarity with local law of the decedent’s domicile, and the general convenience to all parties.
Concerning refund jurisdiction, 28 U.S.C. sections 134& 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 ás 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.
Finally, the dissent’s approach conflicts with our cases involving litigation costs. In Estate of Hubberd v. Commissioner, 99 T.C. 335, 338 (1992), we held that an estate is a party eligible to be awarded litigation costs. In doing so, we expressly recognized that
“Common sense compels a finding that an estate is a "party.’ It is an entity which can be taxed, which can earn income (which is taxed), which can sue, and which can be sued. * * * In any event, the real party in interest here is the estate which, by way of its personal representative, is challenging the tax levied against it.” [Id. (quoting Boatmen’s First Natl. Bank v. United States, 723 F. Supp. 163, 169 (W.D. Mo. 1989)); emphasis added.]
The U.S. Court of Appeals for the Seventh Circuit recently adhered to this concept in Estate of Woll v. United States, 44 F.3d 464, 467-468 (7th Cir. 1994). In holding that an estate is a party eligible to recover attorney’s fees, the court stated:
Notably, the * * * [Equal Access to Justice Act] does not list estates among the parties eligible to recover litigation costs. However, seeing no reason to treat estates differently from individuals, the Tax Court, the Court of Claims, and at least two district courts have concluded that estates should be permitted to recover their costs despite statutory omission. * * * [Id. at 467 (citing Estate of Hubberd v. Commissioner, supra at 338-339); emphasis added.]
In the setting of a case in the U.S. Tax Court, the estate and the decedent are the focus of the proceeding. In that regard, it is likely that Courts of Appeals would treat the Court of Appeals for the Eighth Circuit as the proper appellate venue under section 7482(b).
Jacobs, Parr, Colvin, Foley, and Vasquez, JJ., agree with this concurring opinion.Sec. 7482(b) prescribes that appellate venue will be in the Court of Appeals for the circuit in which the legal residence of the petitioner is located.
The dissent’s disagreement with the majority’s rationale could have been expressed without discussing or relying on the effect of venue on any possible appeal. Due to the majority’s decision to no longer follow our prior position regarding the QTIP issue, this Court would be in agreement with all Courts of Appeals that have addressed this issue, and it would be unnecessary for us to consider whether it would be appropriate to follow the rule of a particular circuit. See Golsen v. Commissioner, 54 T.C. 742 (1970), affd. 445 F.2d 985 (10th Cir. 1971).
The forum-shopping problem would be further exacerbated where an estate is represented by more'than one fiduciary whose residences would offer the possibility of an appeal to different Courts of Appeals.
Sec. 2203 defines the term “executor” for purposes of the Internal Revenue-fcode, 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”.
The Federal tax refund case Kruskal v. United States, 178 F.2d 738 (2d Cir. 1950), which is heavily relied on in the dissenting opinion, places central focus and substantial reliance on Mecom v. Fitzsimmons Drilling Co., 284 U.S. 183 (1931), a case involving Federal diversity jurisdiction. It is also noted that these cases are about 45 and 65 years old, respectively, and predate contemporary legislation and thinking on the subject of venue.
The dissent, however, does not explain why following those principles would cause a better or more feasible result.
We are not in a position to dictate which Court of Appeals should review our opinions. However, in the process of establishing a rule concerning the identity of the petitioner in our Court and interpreting the appellate venue statute, we should consider the potential procedural effect on the litigation process.