the Seventh Circuit, which has not yet addressed this particular QTIP issue.

Although the reviewing court will undoubtedly make its own determination, I think it is appropriate for this Court to address the issue of venue. Brewin v. Commissioner, 72 T.C. 1055, 1059 (1979), revd. and remanded on another issue 639 F.2d 805 (D.C. Cir. 1981).3 This venue issue arises under a specific Internal Revenue Code provision applicable only to the Tax Court and appears to be an issue of first impression. Section 7482(b)(1) provides with respect to review of decisions of the Tax Court:

SEC. 7482(b). VENUE.—

(1) IN GENERAL.-Except as otherwise provided in paragraphs (2) and (3), such decisions may be reviewed by the United States court of appeals for the circuit in which is located

(A) in the case of a petitioner seeking redetermination of tax liability other than a corporation, the legal residence of the petitioner,

(B) in the case of a corporation seeking redetermination of tax liability, the principal place of business or principal office or agency of the corporation, or, if it has no principal place of business or principal office or agency in any judicial circuit, then the office to which was made the return of the tax in respect of which the liability arises,

(C) in the case of a person seeking a declaratory decision under section 7476, the principal place of business, or principal office or agency of the employer,

(D) in the case of an organization seeking a declaratory decision under section 7428, the principal office or agency of the organization, or

(E) in the case of a petition under section 6226 or 6228(a), the principal place of business of the partnership.

If for any reason no subparagraph of the preceding sentence applies, then such decisions may be reviewed by the Court of Appeals for the District of Columbia. For purposes of this paragraph, the legal residence, principal place of business, or principal office or agency referred to herein shall be determined as of the time the petition seeking redetermination of tax liability was filed with the Tax Court or as of the time the petition seeking a declaratory decision under section 7428 or 7476, or the petition under section 6226 or 6228(a), was filed with the Tax Court.

Section 7482(b)(1)(A) and (B) is the relevant provision for this venue inquiry.

In estate tax cases in the Tax Court, sometimes the estate is referred to as the petitioner and sometimes the executor

3 See also Peat Oil & Gas Associates v. Commissioner, T.C. Memo. 1993-130, appeal dismissed without published opinion for improper venue 12 F.3d 214 (6th Cir. 1993).

is referred to as the petitioner.4 However, this Court has never squarely addressed whether the estate or the executor is the petitioner or the real party in interest, or, stated another way, whether the residence (or principal place of business) of the executor at the time the petition is filed, or the residence of the decedent at the time of his death, is determinative for purposes of venue under section 7482(b)(1). That issue does not turn upon how a case is captioned in this Court.5 Cf. Estate of Turner v. Helvering, 68 F.2d 759, 760 (D.C. Cir. 1934). That issue does not turn upon how the capacity of fiduciaries or other representatives to litigate in this Court is to be determined.6 No issue has been raised in this Court as to the capacity of Richard E. Clack and the Marshall & Ilsley Trust Co. to litigate in this Court. Their capacity to litigate in this Court is to be determined, and presumably has been determined, under Arkansas law. In any event, their capacity to litigate in the Tax Court does not mean that the State that appointed them determines the proper venue for any appeal from a decision of this Court. See Mecom v. Fitzsimmons Drilling Co., 284 U.S. 183, 186, 190 (1931) (venue in Federal diversity case); Buchheit v. United Air Lines, Inc., 202 F. Supp. 811 (S.D.N.Y. 1962)

4 That sec. 7482(b)(1)(A) uses the term "petitioner" rather than "taxpayer" is not particularly relevant to our inquiry. Various provisions of the Internal Revenue Code refer to "the taxpayer" whether in the context of deficiency cases in the Tax Court (sec. 6212—notice of deficiency; sec. 6213-restrictions applicable to deficiencies; petition to Tax Court) or in the context of tax refund cases in the U.S. District Courts (sec. 7422-civil actions for refund). However, when it comes to venue provisions, sec. 7482(b)(1)(A) uses the term "petitioner" for the party filing a deficiency case in the Tax Court, and 28 U.S.C. sec. 1402(a)(1) (1994) uses the term "plaintiff” for the party filing a tax refund suit.

5 Rule 23(a)(1) provides that "The name of an estate or trust or other person for whom a fiduciary acts shall precede the fiduciary's name and title, as for example 'Estate of Mary Doe, deceased, Richard Roe, Executor.""

6 Rule 60(c) provides that "The capacity of a fiduciary or other representative to litigate in the Court shall be determined in accordance with the law of the jurisdiction from which such person's authority is derived."

7 The Probate Court of Benton County, Arkansas, issued letters testamentary to Richard E. Clack and the Marshall & Ilsley Trust Co., authorizing them to act as coexecutors of decedent's estate. That Mr. Clack is a resident of Wisconsin and that the Trust Co. has its principal place of business in Wisconsin did not disqualify them to be authorized to act as coexecutors of dececent's estate and hence authorized to represent decedent's estate and litigate in this Court. Under Arkansas law, a nonresident natural person is authorized to act as executor so long as an in-state agent is appointed for service of process. Ark. Code Ann. secs. 2848-101(a), 28– 48-101(b)(6) (Michie 1987). Under Arkansas law, a foreign corporation is not disqualified to act as a fiduciary so long as its home jurisdiction (here Wisconsin) grants authorization to Arkansas companies to act in a similar capacity. Ark. Code Ann. secs. 28-48-101(a), 28-48-101(b)(4) (Michie 1987); Ark. Code Ann. sec. 4-27-203 (Michie 1987). Wisconsin law essentially tracks that of Arkansas in this regard. Wis. Stat. Ann. secs. 856.21, 856.23 (West 1991); sec. 223.12(1), (4) (West 1957 & Supp. 1981).

(venue under Federal Tort Claims Act). These venue cases suggest that the personal residence of an executor or administrator is controlling, and that the residence of the decedent at the time of his death and the place of appointment of the executor or administrator are immaterial.

Petitioner does not dispute that the "legal residences" of the coexecutors determine the proper venue for an appeal in this case. Rather, petitioner argues that because decedent was domiciled in Arkansas at the time of his death, the coexecutors should be deemed to reside in Arkansas. Petitioner suggests that the standard applied for establishing diversity jurisdiction of Federal courts under 28 U.S.C. sec. 1332 (1994) and removal under 28 U.S.C. sec. 1441 (1994) should apply for purposes of determining venue under section 7482(b)(1). Petitioner argues that "In the related field of diversity jurisdiction, courts have demonstrated a willingness to look behind the individual residence of the executor when determining the citizenship of parties." The Judicial Improvements and Access to Justice Act of 1988, Pub. L. 100-702, sec. 202(a), 102 Stat. 4646, added 28 U.S.C. sec. 1332(c), which provides:

(c) For the purposes of this section and section 1441 of this title

(2) the legal representative of the estate of a decedent shall be deemed to be a citizen only of the same State as the decedent, and the legal representative of an infant or incompetent shall be deemed to be a citizen only of the same State as the infant or incompetent.

As acknowledged by petitioner, 28 U.S.C. sec. 1332, by its express terms, applies only to that section and to 28 U.S.C. sec. 1441. This provision does not mention the Tax Court's venue statute, which had been in the law for 22 years at that time. I think that this 1988 provision "overrules" neither the cases on which I rely nor this Court's specific venue statute.

Proper venue in a Federal tax case is a question of Federal law and is to be determined by examining the Federal venue provisions, any relevant legislative history, and any case law construing them. I have not found any case construing section 7482(b)(1). Accordingly, I look to the various predecessor venue statutes for this Court leading up to the present section 7482(b)(1), the reasons for adoption of section 7482(b)(1),

and any cases construing similar provisions in Federal tax refund cases.

The Board of Tax Appeals, the predecessor of this Court, was established in 1924. Revenue Act of 1924, ch. 234, sec. 900, 43 Stat. 253, 336. Two years later the law was expanded to provide appellate review by a Circuit Court of Appeals or the Court of Appeals for the District of Columbia. Revenue Act of 1926, ch. 27, sec. 1001, 44 Stat. 9, 109. Venue for such appeals was set forth in section 1002 of the Revenue Act of 1926. Section 1002(a) of the act provided review for "an individual" by the circuit "whereof he is an inhabitant". Section 1002(b) of the act provided review for "a person (other than an individual)" by the circuit in which is located the office of the collector where the tax return was filed. The term "person (other than an individual)" was defined to include an estate. See Ayer v. Commissioner, 63 F.2d 231 (2d Cir. 1933), dismissing appeal from 26 B.T.A. 9 (1932). Because of the definition of "person (other than an individual)" to include an estate and confusion as to where returns were to be filed, the cases construing section 1002 of the Revenue Act of 1926 are not on point or particularly helpful in the present inquiry. See Estate of Turner v. Helvering, 68 F.2d 759 (D.C. Cir. 1934); Ayer v. Commissioner, supra; Matheson v. Commissioner, 54 F.2d 537 (2d Cir. 1931), affg. 18 B.T.A. 674 (1930); Rusk v. Commissioner, 53 F.2d 428 (7th Cir. 1931), affg. 20 B.T.A. 138 (1930).

8

In 1934 the venue provision for the Board of Tax Appeals was changed to make venue depend entirely upon where the tax return was filed. Section 519 of the Revenue Act of 1934, ch. 277, 48 Stat. 680, 760, amended section 1002 of the Revenue Act of 1926 to read as follows:

(a) Except as provided in subdivision (b), such decision may be reviewed by the Circuit Court of Appeals for the circuit in which is located the collector's office to which was made the return of the tax in respect of which the liability arises or, if no return was made, then by the Court of Appeals of the District of Columbia.

(b) Notwithstanding the provisions of subsection (a), such decision may be reviewed by any Circuit Court of Appeals, or the Court of Appeals of

8 The estate income tax return was filed with the office of the collector for the district where the fiduciary resided; the estate tax return was filed in the office of the collector for the district where the decedent resided at the time of his death. Revenue Act of 1924, ch. 234, secs. 225(b), 300, 304, 43 Stat. 253, 280, 303, 307.

the District of Columbia, which may be designated by the Commissioner and the taxpayer by stipulation in writing.

That version of the venue statute making venue, absent a stipulation to the contrary, depend entirely upon where the tax return was filed became section 1141(b) of the 1939 Internal Revenue Code and then substantially unchanged became section 7482 of the 1954 Internal Revenue Code. In the meantime the Board of Tax Appeals became the Tax Court of the United States and then the U.S. Tax Court. That 1934 provision remained the venue statute for appeal from Tax Court decisions until the current version of section 7482(b)(1) was enacted in 1966.

In connection with the Internal Revenue Service's then conversion from manual to automatic data processing of tax returns, the Act of Nov. 2, 1966, provided for tax returns to be filed with Internal Revenue Service Centers rather than with the offices of the collectors. The 1966 Act abolished all tax refund suits against collectors, retaining only tax refund suits against the United States in U.S. District Courts or in the U.S. Court of Claims (later Claims Court and now Court of Federal Claims). The 1966 Act made significant changes in the Tax Court's venue statute. Pub. L. 89-713, sec. 3(c), 80 Stat. 1107, 1109.

As amended in 1966 to its current form, section 7482(b)(1) was part of a change in venue for both criminal tax and Tax Court cases. The general purpose of the change was to better disperse the appeals among the various circuits and to model venue for Tax Court appeals after the provision of existing law prescribing venue for tax refund suits in the U.S. District Courts. S. Rept. 1625, 89th Cong. 2d Sess. (1966), 19662 C.B. 803, 808.

So what is the proper venue for tax refund suits after which the Tax Court's venue statute is modeled? Section 1346(a)(1) of title 28 places original jurisdiction in the U.S. District Courts or the U.S. Court of Federal Claims for any suit against the United States for refund of Federal taxes.9

928 U.S.C. sec. 1346(a)(1) (1994) provides:

(a) The district courts shall have original jurisdiction concurrent with the United States Court of Federal Claims, of:

(1) Any civil action against the United States for the recovery of any internal-revenue tax alleged to have been erroneously or illegally assessed or collected, or any penalty claimed to have been excessive or in any manner wrongfully collected under the internal-revenue laws;