Opinion
21789-22
04-03-2023
MICHAEL E. MCDONNELL, DECEASED AND KATHRYN MCDONNELL, SURVIVING SPOUSE, KATHRYN MCDONNELL, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Kathleen Kerrigan Chief Judge
The petition to commence this case was filed on October 3, 2022. Petitioners seek review of a notice of deficiency issued to petitioners for their 2020 tax year. The petition indicates that petitioner Michael E. McDonnell was deceased at the time the petition was filed.
Any action in this Court must be prosecuted by a proper party. 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, this Court is without jurisdiction as to that taxpayer. Fehrs v. Commissioner, 65 T.C. 346, 348-349 (1975). A deceased petitioner may be represented in this Court by someone acting in a fiduciary capacity, such as an executor, administrator, or personal representative of the decedent's estate. The capacity of a fiduciary or other representative to litigate in this Court is determined in accordance with applicable state law. Rule 60(c), Tax Court Rules of Practice and Procedure.
Also, as relevant 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. Estate of Galloway, 103 T.C. 700 (1994).
Upon due consideration, it is
ORDERED that the caption of this case is amended to read: "Michael E. McDonnell, Deceased, and Kathryn McDonnell, Petitioners v. Commissioner of Internal Revenue, Respondent". It is further
ORDERED that, on or before May 15, 2023, the parties shall confer as to the status of this case, including: (1) whether the estate of decedent Michael E. McDonnell has been or will be probated; (2) if decedent's estate is being probated, whether an executor, administrator, or other fiduciary has been appointed by a court of competent jurisdiction and, if so, the name and address of such court-appointed fiduciary for decedent's estate; (3) 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, pursuant to California Civil Procedure Code section 377.33, as special administrator of decedent's estate for purposes of this litigation; and (4) if there is any fiduciary duly authorized to represent decedent's estate or any individual willing to serve as special administrator for decedent's estate under, whether that individual intends to file a proper Motion to Substitute Parties and Change Caption (to which should be attached relevant documentation supporting the individual's legal capacity to represent decedent's estate). It is further
ORDERED that, on or before May 31, 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 preceding ordered paragraph. Respondent shall attach to his status report a copy of decedent's death certificate.