Respondent filed his answer on April 8, 2010. On January 3, 2011, respondent's motion for leave to file amendment to answer, filed December 23, 2010, was granted. In the motion respondent alleged that the gifts made in 1992 were made to "skip persons" under section 2613 and accordingly were subject to the generation-skipping transfer tax under section 2601. The motion asserted an increased deficiency in estate tax of $4,972,876.30 and an increased section 6662 (a) accuracy-related penalty of $994,575.26.

On June 9, 2011, Ms. Norberg filed a motion to dismiss. On June 17, 2011, respondent was ordered to file any response to the motion to dismiss on or before July, 25, 2011. Respondent's objection to the motion to dismiss was filed on July 22, 2011, with six exhibits, denominated A through F, attached. On August 26, 2011, Ms. Norberg filed two documents: (1) A reply memorandum in support of objections to respondent's objections to motion to dismiss 2011 U.S. Tax Ct. LEXIS 51">*57 and (2) Mary 137 T.C. 165">*169 Helen Norberg's evidentiary objections to respondent's objections to motion to dismiss.

Ms. Norberg asserts that "In ruling on a motion for summary adjudication, a trial court can only consider admissible evidence" and that because respondent's "factual allegations and exhibits in support of * * *.[respondent's objection]" are inadmissible, they "must be stricken", citing rule 56(e) of the Federal Rules of Civil Procedure, Orr v. Bank of Am., 285 F.3d 764">285 F.3d 764, 285 F.3d 764">773 (9th Cir. 2002), and Beyene v. Coleman Sec. Servs., Inc., 854 F.2d 1179">854 F.2d 1179, 854 F.2d 1179">1181 (9th Cir. 1988), as her authorities.

In 285 F.3d 764">Orr v. Bank of Am., supra at 773, the Court of Appeals for the Ninth Circuit, the court to which this case is appealable absent stipulation to the contrary, stated: "A trial court can only consider admissible evidence in ruling on a motion for summary judgment." 854 F.2d 1179">Beyene v. Coleman Sec. Servs., Inc., supra at 1181, and rule 56(e) of the Federal Rules of Civil Procedure stand for the same proposition. But we are not ruling on a motion for summary judgment. We are ruling on a motion to dismiss for lack of subject matter jurisdiction.^{22011 U.S. Tax Ct. LEXIS 51">*59} The U.S. Supreme Court has held where, 2011 U.S. Tax Ct. LEXIS 51">*58 as here, "there is no statutory direction for procedure upon an issue of jurisdiction, the mode of its determination is left to the trial court." Gibbs v. Buck, 307 U.S. 66">307 U.S. 66, 307 U.S. 66">71-72, 59 S. Ct. 725">59 S. Ct. 725, 83 L. Ed. 1111">83 L. Ed. 1111 (1939). When an issue of jurisdiction is raised, either by a party or on our own initiative, we "may inquire by affidavits or otherwise, into the facts as they exist." Land v. Dollar, 330 U.S. 731">330 U.S. 731, 330 U.S. 731">735 n.4, 67 S. Ct. 1009">67 S. Ct. 1009, 91 L. Ed. 1209">91 L. Ed. 1209 (1947), overruled by implication on other grounds by Larson, v. Domestic & Foreign Commerce Corp., 337 U.S. 682">337 U.S. 682, 69 S. Ct. 1457">69 S. Ct. 1457, 93 L. Ed. 1628">93 L. Ed. 1628 (1949); see also Stevens v. Redwing, 146 F.3d 538">146 F.3d 538 (8th Cir. 1998).

137 T.C. 165">*170 None of respondent's exhibits will be stricken, and the Court will examine all the facts before us in determining whether we have jurisdiction over this case.

The Tax Court is a court of limited jurisdiction and may exercise jurisdiction only to the extent authorized by Congress. Adkison v. Commissioner, 592 F.3d 1050">592 F.3d 1050, 592 F.3d 1050">1052 (9th Cir. 2010), affg. on other grounds 129 T.C. 97">129 T.C. 97 (2007). Our jurisdiction to redetermine a deficiency depends upon the issuance of a valid notice of deficiency and a timely filed petition. Rule 13(a), (c); Monge v. Commissioner, 93 T.C. 22">93 T.C. 22, 93 T.C. 22">27 (1989).

Section 6212(a) expressly authorizes the Commissioner, after determining a deficiency, to send a notice of deficiency to the taxpayer. In the instance of an estate tax deficiency, once the Commissioner is notified of the existence of a fiduciary relationship, the fiduciary steps into the shoes of the taxpayer for tax purposes, and the notice of deficiency is to be sent to the fiduciary. Sec. 6212(b)(3); Rule 60(a); Estate of McElroy v. Commissioner, 82 T.C. 509">82 T.C. 509, 82 T.C. 509">512 (1984); Estate of Kisling v. Commissioner, T.C. Memo. 1993-119; 2011 U.S. Tax Ct. LEXIS 51">*60 sec. 301.6212-1 (b) (3), Proced. & Admin. Regs. The taxpayer (or fiduciary) in turn has 90 days from the date the notice of deficiency is mailed (150 days if the notice is mailed to a taxpayer outside of the United States) to file a petition in this Court" for a redetermination of the deficiency. Sec. 6213(a); Rule 60(a); Estate of Moffat v. Commissioner, 46 T.C. 499">46 T.C. 499, 46 T.C. 499">501 (1966).

Ms. Norberg, relying on Hulburd v. Commissioner, 296 U.S. 300">296 U.S. 300, 56 S. Ct. 197">56 S. Ct. 197, 80 L. Ed. 242">80 L. Ed. 242, 1936-1 C.B. 320 (1935), argues that "the notice was issued and mailed to the wrong taxpayer".^{32011 U.S. Tax Ct. LEXIS 51">*61} Although unclear, we surmise Ms. Norberg's argument is that she was not a fiduciary within the meaning of section 6212(b)(3). She states that she 137 T.C. 165">*171 was never appointed executrix of decedent's estate by a California probate court and no action of any kind seeking, her appointment as executrix will be taken. According to Ms. Norberg, the notice of deficiency should have been addressed to "Jane Henger Gudie Living Trust-dated July 17, 1991, Mary Helen Norberg and Patricia Ann Lane successor co-trustees, or to Norberg as a transferee".

Respondent argues that Ms. Norberg was in actual or constructive receipt of property of decedent and thus "as statutory executor within the meaning of section 2203, was the proper person to whom to issue the notice of deficiency pursuant to section 6212 (b) (3) and the proper party to bring the instant case pursuant to Tax Court Rule 60(a)".

Our conclusion, explained below, is that Ms. Norberg, because she was in actual or constructive possession of property of decedent, was a statutory executor. As such she had the responsibility and authority to file the estate tax return. By filing the estate tax return, she notified respondent of a fiduciary relationship and was the proper person to receive the notice of deficiency.

Section 2203 defines "executor" for purposes of the Federal estate tax as "the executor or administrator of the decedent, or, if there is no executor or administrator appointed, qualified, and acting within the United States, then any person in actual or 2011 U.S. Tax Ct. LEXIS 51">*62 constructive possession of any property of the decedent." In her objection, Ms. Norberg states she "was never in possession of any assets of the probate estate of Jane H. Gudie, or of other estates, with respect to any and all times relevant to our motion to dismiss." Ms. Norberg attached to her objection the signed declaration of Mr. Hess, who, also states that "Norberg was not ever in possession of any assets of the probate estate of Jane H. Gudie". Ms. Norberg and Mr. Hess carefully confine their statements to the "probate estate". The fact that the property Ms. Norberg received did not pass through probate is immaterial to this discussion. This Court has previously held in situations like this that "the fact that * * * property interests passed * * * 137 T.C. 165">*172 directly rather than as part of decedent's probate estate is immaterial." Estate of Guida v. Commissioner, 69 T.C. 811">69 T.C. 811, 69 T.C. 811">813 (1978); see also Estate of Wilson v. Commissioner, 2 T.C. 1059">2 T.C. 1059, 2 T.C. 1059">1083-1084 (1943) (stating that if taxpayers could distinguish between probate and nonprobate property to defeat-the estate tax, "the law would soon be a nullity").

On the facts before us, Ms. Norberg was in actual or constructive possession of decedent's 2011 U.S. Tax Ct. LEXIS 51">*63 property at the time the estate tax return was filed.⁴ At the time the estate tax return was filed, there was no one appointed, qualified, or acting as executor or administrator of decedent's estate. Therefore Ms. Norberg qualified as a statutory executor of decedent's estate for purposes of the Federal estate tax.^{52011 U.S. Tax Ct. LEXIS 51">*64} See sec. 2203; Huddleston v. Commissioner, 100 T.C. 17">100 T.C. 17, 100 T.C. 17">30-31 (1993); 69 T.C. 811">Estate of Guida v. Commissioner, supra at 813; New York Trust Co. v. Commissioner, 26 T.C. 257">26 T.C. 257, 26 T.C. 257">261-262 (1956); Allen v. Commissioner, T.C. Memo. 1999-385.

Section 6018(a) (1) directs the executor in cases where the decedent's gross estate exceeds the applicable exclusion amount to file an estate tax return. See also sec. 20.6018-2, Estate Tax Regs. Therefore, as statutory executor, Ms. Norberg had the responsibility and authority to file the estate tax return.

Section 6036 provides in part: "every executor (as defined in section 2203), shall give notice of his qualification as such to the Secretary in such manner and at such time as may be required by regulations of the Secretary." Section 6903(a) provides:

SEC. 6903(a). Rights and Obligations of Fiduciary.—-Upon notice to the Secretary that any person is acting for another person in a fiduciary capacity, such fiduciary shall assume the powers, rights, duties, and privileges of such other person in respect of a tax imposed by this title (except 2011 U.S. Tax Ct. LEXIS 51">*65 as otherwise specifically provided and except that the tax shall be collected 137 T.C. 165">*173 from the estate of such other person), until notice is given that the fiduciary capacity has terminated.

Ms. Norberg's filing of the estate tax return gave respondent notice for purposes of sections 6036 and 6903 that she was to be treated as the executor and fiduciary of decedent's estate. Section 20.6036-2, Estate Tax Regs., provides in relevant part: "The requirement of section 6036 for notification of qualification as executor of an estate shall be satisfied by the filing of the estate tax return required by section 6018".Section 301.6036-1 (c), Proced. & Admin. Regs., provides: "When a notice is required under § 301.6903-1 of a person acting in fiduciary capacity and is also required of such person under this section, notice given in accordance with the provisions of this section shall be considered as complying with both sections." Hence, filing the estate tax return as executor was adequate notice for purposes of both sections 6036 and 6903.^{62011 U.S. Tax Ct. LEXIS 51">*66}

Ms. Norberg never gave respondent a notice of termination. Therefore she was never relieved of her powers, rights, duties, and privileges as a fiduciary of decedent's estate for Federal estate tax purposes. She was the proper individual to receive the notice of deficiency under section 6212 and had the capacity to contest the notice of deficiency upon which this case is based. See Rule 60(a) (1); 100 T.C. 17">Huddleston v. Commissioner, supra at 30-31; Estate of Sivyer v. Commissioner, 64 T.C. 581">64 T.C. 581 (1975); 2011 U.S. Tax Ct. LEXIS 51">*67 Allen v. Commissioner, supra; see also Estate of Kisling v. Commissioner, T.C. Memo. 1993-119 (stating that the fiduciary of the estate was required to look after its interests). Respondent properly mailed a notice of deficiency to "Estate of Jane H. Gudie, c/o Mary Helen Norberg, Executor", and Ms. Norberg's timely petition gave this Court jurisdiction. See also Estate of Callahan v. Commissioner, T.C. Memo. 1981-357 (stating: "The function of a 137 T.C. 165">*174 statutory notice of deficiency is to afford * * * [the taxpayer] a full and fair opportunity to present its case in this Court.").

In conclusion, the notice of deficiency was appropriately addressed to Ms. Norberg and she had the authority to file the petition in this case. Her timely petition in response to the valid notice of deficiency gives this Court jurisdiction.

Although the argument is unclear, in her motion to dismiss Ms. Norberg appears to argue that the period of limitations on assessment has expired. In her objection to respondent's objection, Ms. Norberg states she "did not and is not asserting in this motion any issue regarding statute of limitations" and asks us not to rule on this issue. We need not 2011 U.S. Tax Ct. LEXIS 51">*68 analyze this issue here but do note two things. First, pursuant to sections 6503(a)(1) and 6213(a), the period of limitations on assessment, if open when a notice of deficiency was sent, would generally be suspended if a timely petition was filed until such time as the Secretary is no longer prohibited from assessing the tax. Second, the statute of limitations is an affirmative defense, not a jurisdictional matter. See Rule 39; Freytag v. Commissioner, 110 T.C. 35">110 T.C. 35, 110 T.C. 35">41 (1998).

To reflect the foregoing,

An appropriate order will be issued denying petitioner's motion to dismiss for lack of subject matter jurisdiction.