Opinion
34056-21S
05-01-2023
MARILYN R. LEEBURG AND LEWIS E. LEEBURG, DECEASED, Petitioner(s) v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Kathleen Kerrigan Chief Judge.
On November 8, 2021, the petition to commence this case was filed on behalf of petitioners by John Leeburg. The peitition seeks review of a notice of deficiency issued to petitioners for their 2018 tax year. On March 1, 2023, respondent filed a Motion to Dismiss for Lack of Prosecution, stating therein that: (1) at the time the petition was filed, both petitioners were deceased; (2) no probate proceedings have been commenced with respect to petitioners' estates; and (3) there are no plans to commence probate proceedings with respect to petitioners' estates.
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 as to that taxpayer. Fehrs v. Commissioner, 65 T.C. 346, 348-349 (1975). This Court, unlike the IRS, does not recognize powers of attorney. Furthermore, a power of attorney becomes ineffective upon the death of the principal.
At this juncture, as the petition does not bear the signatures of petitioners or someone lawfully authorized to act on behalf of their estates, the Court lacks jurisdiction with respect to the decedent petitioners. Therefore, a motion to dismiss for lack of jurisdiction, rather than a motion to dismiss for lack of prosecution, would be the appropriate motion in these circumstances.
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 before this Court by someone acting in a fiduciary capacity, such as a court-appointed 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."
The Court notes that decedents resided in California at the time of their deaths. As relevant, therefore, in this case, 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. 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 with the Court the affidavit or declaration described in California Civil Procedure Code section 377.32. Id.
Upon due consideration of the foregoing, it is ORDERED that respondent's Motion to Dismiss for Lack of Prosecution is denied. It is further
ORDERED that the caption of this case is amended to read: "Marilyn R. Leeburg, Deceased, and Lewis E. Leeburg, Deceased, Petitioners v. Commissioner of Internal Revenue, Respondent". It is further
ORDERED that, on or before May 31, 2023, John Leeburg and respondent shall confer concerning the following matters: (1) the names and addresses of decedents' successors in interest, within the meaning of California Civil Procedure Code section 377.11, and (2) whether any of those individuals intend to prosecute this case on behalf of decedents by filing a Motion to Substitute Parties and Change Caption accompanied by the affidavit or declaration provided for by California Civil Procedure Code section 377.32. It is further
ORDERED that, on or before June 14, 2023, respondent shall file a status report concerning the then-current status of this case, including information about the above-referenced matters set forth in the ordered paragraph above. Respondent shall attach to his status report copies of decedents' death certificates. It is further
ORDERED that, in addition to regular service, the Clerk of the Court shall serve this Order on John Leeburg at 2300 Hillsdale Way Boulder, Colorado 80305.
CODE OF CIVIL PROCEDURE - CCP
PART 2. OF CIVIL ACTIONS [307 - 1062.20]
(Part 2 enacted 1872.)
TITLE 3. OF THE PARTIES TO CIVIL ACTIONS [367 - 389.5]
(Title 3 enacted 1872.)
CHAPTER 4. Effect of Death [377.10 - 377.62]
(Chapter 4 added by Stats. 1992, Ch. 178, Sec. 20.)
ARTICLE 3. Decedent's Cause of Action
(Article 3 added by Stats. 1992, Ch. 178, Sec. 20.)
377.30.
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, subject to Chapter 1 (commencing with Section 7000) of Part 1 of Division 7 of the Probate Code, and an action may be commenced by the decedent's personal representative or, if none, by the decedent's successor in interest.
(Added by Stats. 1992, Ch. 178, Sec. 20. Effective January 1, 1993.)
377.31.
On motion after the death of a person who commenced an action or proceeding, the court shall allow a pending action or proceeding that does not abate to be continued by the decedent's personal representative or, if none, by the decedent's successor in interest.
(Added by Stats. 1992, Ch. 178, Sec. 20. Effective January 1, 1993.)
377.32.
(a) The person who seeks to commence an action or proceeding or to continue a pending action or proceeding as the decedent's successor in interest under this article, shall execute and file an affidavit or a declaration under penalty of perjury under the laws of this state stating all of the following:
(1) The decedent's name.
(2) The date and place of the decedent's death.
(3) "No proceeding is now pending in California for administration of the decedent's estate."
(4) If the decedent's estate was administered, a copy of the final order showing the distribution of the decedent's cause of action to the successor in interest.
(5) Either of the following, as appropriate, with facts in support thereof:
(A)"The affiant or declarant is the decedent's successor in interest (as defined in Section 377.11 of the California Code of Civil Procedure) and succeeds to the decedent's interest in the action or proceeding."
(B)"The affiant or declarant is authorized to act on behalf of the decedent's successor in interest (as defined in Section 377.11 of the California Code of Civil Procedure) with respect to the decedent's interest in the action or proceeding."
(6) "No other person has a superior right to commence the action or proceeding or to be substituted for the decedent in the pending action or proceeding."
(7) "The affiant or declarant affirms or declares under penalty of perjury under the laws of the State of California that the foregoing is true and correct."
(b) Where more than one person executes the affidavit or declaration under this section, the statements required by subdivision (a) shall be modified as appropriate to reflect that fact.
(c) A certified copy of the decedent's death certificate shall be attached to the affidavit or declaration.
(Added by Stats. 1992, Ch. 178, Sec. 20. Effective January 1, 1993.)
377.33.
The court in which an action is commenced or continued under this article may make any order concerning parties that is appropriate to ensure proper administration of justice in the case, including appointment of the decedent's successor in interest as a special administrator or guardian ad litem.
(Added by Stats. 1992, Ch. 178, Sec. 20. Effective January 1, 1993.)