Opinion
11967-21
09-16-2021
Kirk Chamberlin & Estate of Melissa R. Court, Deceased Petitioners v. Commissioner of Internal Revenue Respondent
ORDER
Maurice B. Foley Chief Judge
On June 21, 2021, petitioners electronically filed the petition to commence this case. The petition indicates that petitioners seek review of a notice of deficiency issued for their 2018 tax year. A copy of the notice of deficiency is not attached to the petition. Additionally, during the eFiling process, petitioners apparently did not make the election to have this case conducted under the Court's small tax case procedures, but the petition itself indicates that petitioners wish this case to be treated as a small tax case.
Furthermore, the petition bears the original signatures of petitioner Kirk Chamberlin and petitioners' counsel, John D. Faucher. However, neither petitioner Kirk Chamberlin nor John D. Faucher has shown that he is duly authorized to represent the Estate of Melissa R. Court, Deceased in this case. Accordingly, whether we have jurisdiction with respect to the Estate of Melissa R. Court, Deceased, is unclear at this juncture. It is well settled that, unless the petition is filed by the taxpayer, or by someone lawfully authorized to act on the taxpayer's behalf, we are without jurisdiction. Fehrs v. Commissioner, 65 T.C. 346, 348-349 (1975). However, in relevant part, Tax Court Rule 60(a) provides that "A case timely brought shall not be dismissed on the ground that it is not properly brought on behalf of a party until a reasonable time has been allowed after objection for ratification by such party of the bringing of the case; and such ratification shall have the same effect as if the case had been properly brought by such party." A decedent's estate may be represented by someone acting in a fiduciary capacity, such as an executor, administrator, or personal representative of the decedent's estate. Rule 60(c), Tax Court Rules of Practice and Procedure, provides that "the capacity of a fiduciary or other representative to litigate shall be determined in accordance with the law of the jurisdiction from which such person's authority is derived."
As also relevant here, under California law a cause of action that survives the death of the person entitled to commence an action or proceeding passes to the decedent's successor in interest. Cal. Civ. Proc. Code sec. 377.30. In general, a decedent's successor in interest is "the beneficiary of the decedent's estate." Cal. Civ. Proc. Code sec. 377.11. California Civil Procedure Code section 377.33 authorizes the appointment of a decedent's successor in interest as a special administrator for purposes of proceedings in this Court when in the interest of justice. Estate of Galloway, 103 T.C. 700, 701-705 (1994). A person who seeks to continue a pending action or commence a proceeding as the decedent's successor in interest must execute and file an affidavit or declaration described in California Civil Procedure Code section 377.32. See Estate of Galloway, 103 T.C. 700 (1994).
Upon due consideration, it is
ORDERED that on or before October 15, 2021, petitioner Kirk Chamberlin shall file a Response to this Order setting forth the following information: (1) whether petitioners wish this case to be conducted under the small tax case procedures, (2) whether the estate of Melissa R. Court has been or will be probated, (3) if decedent's estate is being probated, whether an executor, administrator, or other fiduciary has been duly appointed for decedent's estate by a court of competent jurisdiction, (4) if so, the name and address of such duly appointed fiduciary for decedent's estate, (5) if decedent's estate has not been or will not be probated, the names and addresses of decedent's heirs at law/successors in interest and whether any of them are willing to serve, under California Civil Procedure Code section 377.33, as special administrator of decedent's estate for purposes of this litigation, and (6) if there is any fiduciary duly authorized to represent decedent's estate or any individual willing to serve as decedent's successor in interest, whether that individual intends to file a proper Motion To Substitute Parties and Change Caption, accompanied by the relevant documents demonstrating that the individual is a duly authorized representative of decedent's estate. Petitioner shall attach to the response a copy of decedent's death certificate and a copy of the notice of deficiency on which this case is based.