64 T.C. 581">*582 This case is before us on petitioner's motion to dismiss for lack of jurisdiction pursuant to Rule 53, Tax Court Rules of Practice and Procedure, on ground that the statutory notice of deficiency was not sent to the proper party. A hearing on the motion was held in Boise, Idaho, on April 21, 1975.

FINDINGS OF FACT

On February 9, 1972, Louis S. Shank (Shank) filed a United States estate tax return for the Estate of Bert L. Sivyer with the District Director of Internal Revenue, Seattle, Wash. Shank, a residuary legatee, was designated executor of the estate on the face of the return.

On February 25, 1972, Shank filed a request, pursuant to section 2204(a), ¹ for discharge1975 U.S. Tax Ct. LEXIS 110">*112 from personal liability for estate tax imposed upon him in his capacity as executor by section 2002. No action on this request was taken by the Commissioner.

On April 23, 1973, an attorney representing Shank sent a letter to the Estate Tax Division, Internal Revenue Service, Spokane, Wash., indicating an intention to distribute the assets of the estate and requesting that the amount of estate tax be determined. Subsequent letters to the same effect were sent to the Estate Tax Division on June 1, 1973, and to the United States attorney's office, Spokane, Wash., on November 21, 1973.

At some later date Shank distributed all of the assets of the estate.

Respondent determined deficiencies in estate tax of $ 221,006, and on December 27, 1974, mailed a statutory notice of deficiency to "Estate of Bert L. Sivyer, Louis S. Shank, Executor."

On February 18, 1975, a petition in the name1975 U.S. Tax Ct. LEXIS 110">*113 of "Estate of Bert L. Sivyer, Louis S. Shank, Executor" was filed with this Court, accompanied by a motion to dismiss the notice of deficiency on jurisdictional grounds.

OPINION

The issue presented is whether Shank was the proper party to be sent the statutory notice of deficiency.

64 T.C. 581">*583 In approaching this issue we acknowledge that Shank had been discharged under section 2204(a)³1975 U.S. Tax Ct. LEXIS 110">*114 from the personal liability for estate tax imposed upon him in his capacity as executor under section 2002. ⁴ However, in our opinion, it has no bearing on the issue presented that Shank may have obtained such a discharge. Shank, in his representative capacity, was the proper party unless prior to the mailing of the deficiency notice his fiduciary capacity as executor was terminated, and he gave respondent written notice of that termination in accordance with section 6903 and the regulations thereunder. ⁵Estate of Theodore Geddings Tarver, 26 T.C. 490">26 T.C. 490 (1956), affd. on this issue 255 F.2d 913">255 F.2d 913 (4th Cir. 1958); Estate of Ella T. Meyer, 58 T.C. 69">58 T.C. 69 (1972).

1975 U.S. Tax Ct. LEXIS 110">*115 64 T.C. 581">*584 Shank asserts that the letters sent by his attorneys to the Estate Tax Division requesting an acceleration of the determination of the estate tax satisfied the notice requirement of section 6903. We find that they did not constitute a notice of termination but merely advised the District Director of Shank's future intention to close the estate and terminate his fiduciary capacity as executor if and when a final determination of estate tax was made.

We therefore hold that having failed to give the requisite notice, Shank was the proper party to be sent the notice of deficiency and the proper party in this proceeding. Sanborn v. Helvering, 108 F.2d 311">108 F.2d 311 (8th Cir. 1940), affg. 39 B.T.A. 721">39 B.T.A. 721 (1939); Estate of Nellie L. Rhodes, 44 B.T.A. 1315">44 B.T.A. 1315 (1941); John M. Eversole, 46 T.C. 56">46 T.C. 56 (1966); David Krueger, 48 T.C. 824">48 T.C. 824 (1967). Accordingly, petitioner's motion to dismiss for lack of jurisdiction will be denied.

An appropriate order will be entered.