Opinion
21789-22
08-07-2023
MICHAEL E. MCDONNELL, DECEASED, AND 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). The petition was filed on behalf of Michael E. McDonnell (decedent) by petitioner Kathryn McDonnell. However, Kathryn McDonnell has not demonstrated that she has the current legal capacity to represent the decedent's estate before this Court. 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.
On June 6, 2023, the Court issued an Order to Show Cause, directing the parties to show cause why so much of this case relating to the decedent should not be dismissed for lack of jurisdiction. No response was received from petitioner Kathryn McDonnell. On June 22, 2023, respondent filed a Response to the Court's Order and, thereafter, on July 28, 2023, filed a First Supplement to Response, indicating therein that (1) no probate proceeding has been commenced with respect to the decedent's estate and petitioner does not plan to seek any other appointments to represent the estate; (2) the decedent's heirs at law, other than petitioner Kathryn McDonnell, are Timothy Michael McDonnell, Julie Anne Oliver, Jennifer Anne Klinger, and Brian Donald McDonnell; and (3) there is no objection by petitioner Kathryn McDonnell or the heirs at law to the dismissal for lack of jurisdiction to so much of this case relating to the decedent.
However, because the interests of the decedent's heirs at laws are potentially affected by this litigation, the Court will provide an opportunity to the heirs at law to take any action that may be required to protect their interests, including prosecuting this case on behalf of the decedent.
Upon due consideration of the foregoing, it is
ORDERED that, on or before August 29, 2023, Timothy Michael McDonnell, Julie Anne Oliver, Jennifer Anne Klinger, and Brian Donald McDonnell shall file a Response, if any, to this Order indicating whether they have any objection to the dismissal for lack of jurisdiction of so much of this case relating to the decedent. If any heir objects to such dismissal, that heir shall indicate whether he or she is willing to serve, pursuant to California Civil Procedure Code section 377.33, as special administrator of the decedent's estate for purposes of this litigation or to be appointed by a court of competent jurisdiction to serve as the personal representative or other fiduciary of the decedent's estate. It is further
ORDERED that, in addition to regular service, the Clerk of the Court shall serve this Order on Timothy Michael McDonnell, Julie Anne Oliver, Jennifer Anne Klinger, and Brian Donald McDonnell at their respective addresses set forth in respondent's First Supplement to Response, filed July 28, 2023.