Opinion
No. CV 05 4002737S
March 22, 2006
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION TO DISMISS (#105)
The plaintiff, Robert Young, the former executor of the estate of Fred J. Young (estate), commenced this appeal on December 1, 2004, against the defendant, the commissioner of revenue services (commissioner). In his two-count amended complaint, the plaintiff seeks a refund of succession taxes paid by the estate and reappointment as executor. On October 24, 2005, the defendant filed a motion to dismiss claiming that the court lacks subject matter jurisdiction.
The plaintiff alleges the following facts in his amended complaint. Fred J. Young (decedent) died on January 15, 1990 holding title to approximately 53 acres of farm land in the town of Newington (town). The probate court thereafter appointed the plaintiff as the executor of the estate. As part of his duties, the plaintiff paid the amount of $46,243 for succession taxes due and payable on the estate.
The estate overpaid its succession tax liability and was refunded the amount of $2,841. See Defendant's Memorandum of Law, p. 1.
Approximately nine years later, the town commenced eminent domain proceedings in order to acquire the farm land for use as open space. On January 20, 1999, the town paid to the estate $1,400,000 for the farm land. As a result, the probate court ordered the estate to pay additional succession taxes, in the amount of approximately $73,000, because the subject farm land was acquired by the town for open space use within ten years of the decedent's death. The plaintiff subsequently resigned as executor and the probate court appointed a successor executor who filed a final accounting. The probate court closed the estate on October 25, 2001.
The file discloses that the estate appealed the award of damages to the Superior Court. The court, Bieluch, JTR, found that the value of the subject property was $2,100,000. See Town of Newington v. Estate of Young, 47 Conn.Sup. 65, 99, 777 A.2d 219 (2000) ( 28 Conn. L. Rptr. 341).
Although the plaintiff and another heir appealed the probate court's decree closing the estate, they subsequently withdrew the appeal. As a result, the probate court's decree became a final judgment. See Young v. Bonee, Superior Court, judicial district of New Britain, Docket No. CV 02 0515430 (May 11, 2004, Cohn, J.).
The plaintiff now claims that he paid the succession taxes on behalf of the estate "in error, pursuant to the order of the Probate Judge." (Plaintiff's Amended Complaint, ¶ 26.) He further alleges that he resigned as executor "due to the encouragement of the judge and several heirs" and that the "resignation . . . encouraged by the Probate Judge was error." (Plaintiff's Amended Complaint, ¶¶ 33-34.)
The plaintiff alleges that: 1) the property should have been excluded from the decedent's gross taxable estate, as defined in subsection (a)(1) of General Statutes § 12-349, when the town acquired the farm land for open space use and 2) the property should not be subject to succession taxes under subsection (e)(1) therein because an exemption existed pursuant to General Statutes § 12-347(c). See Plaintiff's Amended Complaint, ¶¶ 20-21.
General Statutes § 12-349 provides, in relevant part: "(a) . . . (1) The gross estate for the purpose of the tax imposed by the provisions of [Chapter 216, Succession and Transfer Taxes] shall be the total of the fair market value of all the property transferred subject to tax . . . except that the value of any real property in the gross estate classified as farm land in accordance with section 12-107c at the time of the decedent's death shall be determined for purposes of said tax in accordance with the provisions applicable to farm land in section 12-63 . . .
(e) . . . (1) If, within ten years immediately following the death of the decedent, real property in the gross estate of the decedent, classified as farm land in accordance with section 12-107c and the value of which, for purposes of the tax imposed under this chapter, was determined in accordance with provisions applicable to farm land in section 12-63 as provided in subsection (a) of this section, is transferred to anyone other than a beneficiary or distributee in class AA, A or B as provided in section 12-344 or is no longer classified as farm land in accordance with section 12-107c, such beneficiary or distributee shall be liable for a tax applicable to such transfer or change in classification . . ."
(Emphasis added.)
General Statutes § 12-347(c) provides, in relevant part: "In addition to exemptions from the tax imposed . . . as provided in subsections (a) and (b) of this section, exemption from said tax shall be allowed with respect to any transfer of open space land, as defined in section 12-107b provided (1) the grantor in the instrument of conveyance restricts the perpetual use of such property to that of open space land or (2) the grantee submits to the probate court a document executed by the grantee with the same formality as that of a deed, whereby the grantee and the heirs . . . agree to restrict perpetually the use of such property to that of open space, which document shall be recorded in the land records . . . The provisions of this subsection shall be applicable to the estate of any person whose death occurs on or after July 1, 1984 . . ."
Although the plaintiff was the executor who paid all the succession taxes for the estate, he claims that the probate court erroneously ordered the payment of the succession taxes, failed to recognize the existence of the exemption and appointed a successor executor who also failed to pursue the exemption issue. See Plaintiff's Amended Complaint, ¶¶ 22-24 and ¶ 45. The plaintiff alleges that he has standing to recover the refund of succession taxes for the estate and to become reappointed as executor because he is the decedent's "heir at law, next of kin and named beneficiary." (Plaintiff's Amended Complaint, ¶ 55.)
In summary, the plaintiff, now removed as executor, complains that, because the town acquired the 53 acres of land for open space land, that designation should relate back to the decedent's date of death to entitle the estate a full exemption from succession taxes.
In her motion to dismiss, the commissioner asserts that the court lacks subject matter jurisdiction because the plaintiff:
1) does not have standing to bring the appeal;
2) is not appealing from any "order, denial or decree of a court of probate" pursuant to General Statutes § 45a-186(a);
General Statutes § 45a-186(a) provides, in relevant part, that "[a]ny person aggrieved by any order, denial or decree of a court of probate in any matter, unless otherwise specially provided by law, may appeal therefrom to the Superior Court . . ." (Emphasis added.)
3) erroneously relies upon General Statutes § 12-39s because the appeal is barred by the theory of sovereign immunity;
General Statutes § 12-39s provides, in relevant part: "(a) The Commissioner . . . of his own motion, is authorized, where any tax, penalty or interest has been erroneously or illegally assessed against any person by said commissioner, to cancel the unpaid portion of such tax, penalty or interest.
(b) The Commissioner . . . of his own motion, is authorized, if the commissioner determines that any tax, penalty or interest has been paid more than once or has been erroneously or illegally collected or computed, to credit such amount against any amounts then due and payable from such person to said commissioner and to refund, upon order of the Comptroller, the balance, if any, to such person. If such person is required by law to collect such tax or reimbursement for such tax from another person and has collected such tax or reimbursement for such tax from such other person, any amount credited or refunded under this subsection shall be credited or refunded to such other person.
(c) The provisions of this section shall not be construed as authorizing suit against the state by a person against whom any tax, penalty or interest has been erroneously or illegally assessed or from whom any tax, penalty or interest has been erroneously or illegally collected and shall not be construed as a waiver of sovereign immunity . . ." (Emphasis added.)
4) erroneously relies upon Genera] Statutes § 4-183 because the appeal is exempt under its terms;
The court notes that the plaintiff erroneously relies upon this section of the Uniform Administrative Procedure Act (UAPA) because that statute "expressly excludes tax appeals." Kimberly-Clark Corp. v. Dubno, 204 Conn. 137, 145, 527 A.2d 679 (1987).
5) erroneously relies upon General Statutes § 12-33 because the terms apply to a town or corporation that is aggrieved and
The court notes that this statutory provision is inapplicable as the plaintiff is neither a town nor a corporation.
6) seeks to reopen the estate and become executor despite the probate court's statutory authority pursuant to General Statutes § 45a-303.
Count one ostensibly gives the plaintiff standing to maintain this action since the plaintiff purports to appeal the commissioner's decision to not refund succession taxes to the estate. However, the plaintiff's underlying claim presupposes that the commissioner has the authority to refund succession taxes to a closed estate.
General Statutes § 12-39 l (a) provides, in relevant part: "Except as otherwise provided by statute, `tax appeal' means an appeal from an order, decision, determination or disallowance of the Commissioner of Revenue Services; an appeal that may be taken from a decree of a court of probate under subsection (b) of section 12-359, subsection (b) of section 12-367 or under subsection (b) of section 12-395 . . ."
While the plaintiff cites numerous statutes in his memorandum in opposition none of them form a basis to have this court, pursuant to § 12-39 l, intervene in the affairs of the probate court, a tribunal exercising powers conferred upon it by the legislature. See Palmer v. Reeves, 120 Conn. 405, 408-09, 182 A. 138 (1935). With respect to the issue of standing, the court finds that the plaintiff's arguments fall short.
In challenging the commissioner's motion to dismiss, the court notes that the plaintiff generally takes a shot-gun approach in all his "points." This is especially evident in points five through fourteen of his memorandum.
"[S]tanding . . . implicates a court's subject matter jurisdiction, which may be raised at any point in judicial proceedings." Stamford Hospital v. Vega, 236 Conn. 646, 656, 674 A.2d 821 (1996). "If a party is found to lack standing, the court is without subject matter jurisdiction to determine the cause." (Internal quotation marks omitted.) Seymour v. Region One Board of Education, 274 Conn. 92, 104, 874 A.2d 742 (2005). "[I]t is the burden of the party who seeks the exercise of jurisdiction in his favor . . . clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute." (Internal quotation marks omitted.) St. George v. Gordon, 264 Conn. 538, 544-45, 825 A.2d 90 (2003).
"[I]n Connecticut there has long existed a right for a party to appeal the decision or order of a court having jurisdiction over probate matters . . . This right of appeal, however, always has been contingent upon a threshold showing of aggrievement . . . Without such a demonstration of aggrievement, the appealing party may not maintain an appeal. That broad right of appeal for an aggrieved party currently is codified at General Statutes § 45a-186." (Citations omitted.) Fleet National Bank's Appeal from Probate, 267 Conn. 229, 242-43, 837 A.2d 785 (2004). "[T]he absence of aggrievement, as required by [§ 45a-186], is a defect that deprives the Superior Court of jurisdiction to entertain the appeal." (Internal quotation marks omitted.) Adolphson v. Weinstein, 66 Conn.App. 591, 595, 785 A.2d 275 (2001), cert. denied, 259 Conn. 921, 792 A.2d 853 (2002).
"When standing is put in issue, the question is whether the person whose standing is challenged is a proper party to request an adjudication of the issue . . ." (Internal quotation marks omitted.) Eder Bros, Inc. v. Wine Merchants of Connecticut, Inc., 275 Conn. 363, 369, 880 A.2d 138 (2005). "Standing is established by showing that the party claiming it is authorized by statute to bring an action, in other words statutorily aggrieved, or is classically aggrieved." Id.
"In order to determine whether a party has standing to make a claim under a statute, a court must determine the interests and the parties that the statute was designed to protect . . . Essentially the standing question in such cases is whether the . . . statutory provision on which the claim rests properly can be understood as granting persons in the plaintiff's position a right to judicial relief . . . The plaintiff must be within the zone of interests protected by the statute." (Citations omitted; internal quotation marks omitted.) St. George v. Gordon, supra, 264 Conn. 545-46.
"The fundamental test for determining [classical] aggrievement encompasses a well-settled twofold determination: [F]irst, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in [the challenged action], as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the [challenged action]." (Internal quotation marks omitted.) Eder Bros, Inc. v. Wine Merchants of Connecticut, Inc., supra, 275 Conn. 369.
The court finds that the plaintiff is not statutorily aggrieved because he failed to cite to a statute which would afford him the right to sue the defendant for a refund of succession taxes. Because the probate court has the power to appoint or remove an executor pursuant to General Statutes § 45a-242, the plaintiff has no standing to have this court, in the absence of an order or decree of the probate court, to order the appointment of the plaintiff as executor of the estate. Furthermore, as the plaintiff is neither the estate nor the executor, and because neither the probate court nor the department seeks any further succession tax on the estate, the plaintiff cannot claim to be classically aggrieved.
General Statutes § 45a-242 provides, in relevant part:
(a) . . . The court of probate having jurisdiction may, upon its own motion or upon the application and complaint of any person interested . . . after notice and hearing, remove any fiduciary if (1) The fiduciary becomes incapable of executing such fiduciary's trust, neglects to perform the duties of such fiduciary's trust, wastes the estate in such fiduciary's charge, or fails to furnish any additional or substitute probate bond ordered by the court, (2) lack of cooperation among cofiduciaries substantially impairs the administration of the estate, (3) because of unfitness, unwillingness or persistent failure of the fiduciary to administer the estate effectively, the court determines that removal of the fiduciary best serves the interests of the beneficiaries, or (4) there has been a substantial change of circumstances or removal is requested by all of the beneficiaries, the court finds that removal of the fiduciary best serves the interests of all the beneficiaries and is not inconsistent with a material purpose of the governing instrument and a suitable cofiduciary or successor fiduciary is available . . .
(b) . . . The court of probate, after notice and hearing, may accept or reject the written resignation of any fiduciary, but such resignation shall not be accepted until such fiduciary as fully and finally accounted for the administration of such fiduciary's trust to the acceptance of such court . . .
(d) . . . Except as otherwise provided in subsection (c) of this section, upon the death, removal or acceptance of the resignation of any fiduciary before the completion of such fiduciary's duties, the court of probate may appoint a suitable person to fill the resultant vacancy and such successor fiduciary shall give a probate bond . . ."
(Emphasis added.)
In seeking to have this court reappoint him as executor, the plaintiff has not alleged that he first sought permission from the probate court to reopen the estate. In order to reverse the probate court's decision to close the estate, the plaintiff must allege that he was aggrieved by that court's decision. See, e.g., Doyle v. Abbenante, 89 Conn.App. 658, 662 n. 8, 875 A.2d 558, cert. denied, 276 Conn. 911, 886 A.2d 425 (2005) (where the probate court denied the plaintiff's motion to open a closed estate and granted the defendants' motion to dismiss because the plaintiff failed to allege sufficient facts for a showing of aggrievement).
In his present appeal, filed four years after the closing of the estate, the plaintiff apparently relies upon subsection (d) of General Statutes § 12-367 as a means to collaterally attack the commissioner's and the probate court's determination of the succession tax. See Plaintiff's Memorandum, p. 5.
General Statutes § 12-367(d) provides, in relevant part:
"The Commissioner . . . may authorize a refund of an overpayment of such tax made because (1) property was incorrectly included in the gross taxable estate because of a mistake or error or (2) an item in an amount exceeding five hundred dollars which would have been allowed as a deduction . . . is discovered after the tax computation . . . has been made and the appeal period . . . has run, if a claim for refund is filed with the Commissioner . . . and the Probate Court by the fiduciary or a transferee who has paid the tax within two years after the computation or the decree provided for in subsection (b) of this section determining the amount of the tax in which the overpayment is included or within two years of the date of the computation rendered by the Commissioner . . . Within ninety days of his receipt of such claim for refund the Commissioner . . . shall file with the Court of Probate and mail to the fiduciary or transferee a revised computation of the tax or a notice of the rejection of the claim for refund."
(Emphasis added.)
Given that there is a two-year time period within which a fiduciary must file a claim for refund with the commissioner and the probate court, the plaintiff's reliance on § 12-367(d) is flawed because the plaintiff has made no such allegation.
The plaintiff appears to overlook subsection (b) of § 12-367 as well, which provides, in relevant part, that: "Within sixty days after the mailing of the computation by the Commissioner . . . the fiduciary . . . may make written application to the Probate Court for a hearing upon the determination of the tax or the computation thereof. Such application shall set forth in detail the objection to the determination or computation of the tax . . . [The Probate Court] shall determine all matters properly before it, including the amount of such tax and shall enter upon its records a decree for such amount . . . Subject only to the provisions of subsection (d) of this section, the computation of the tax by the Commissioner . . . shall be conclusive upon the state and all persons interested unless a hearing is held thereon as herein provided, in which case the decree of the Probate Court shall be conclusive upon the state and all persons interested unless an appeal is taken as provided for appeals from other decrees and orders of such court." (Emphasis added.)
See footnote three.
In point one of his memorandum, the plaintiff also cited §§ 12-397 and 12-384 to support his argument that he has standing as an heir, beneficiary and past fiduciary of the estate. While the plaintiff contends that he would be personally liable for any succession taxes due in the future as the estate no longer holds the subject 53 acres as an asset, this argument is without merit. The estate is closed and there is no outstanding contest of the succession taxes by the probate court or the commissioner.
Although the plaintiff makes various allegations in his amended complaint regarding errors made by the probate court, this appeal apparently was filed upon the plaintiff's receipt of the commissioner's letter, dated November 1, 2004, rejecting his request for a refund of succession taxes. In the commissioner's view, "the Plaintiff, by letter dated June 5, 2003, filed a claim for refund of succession tax with the Commissioner. In said claim for refund, the Plaintiff requested that the Commissioner issue the Plaintiff a refund of all the succession tax paid by the Estate and that she do so under the authority provided her in . . . § 12-39s. In response thereto, the Commissioner, by letter dated December 17, 2003, explained to the Plaintiff that since he has no legal standing to act on behalf of the Estate, she was unable to consider his request. In response to further inquiries made by the Plaintiff, which complaints were forwarded to the Department by the Governor's office, the Commissioner reconfirmed her position by letter dated November 1, 2004 . . ." (Defendant's Memorandum of Law, p. 10.)
In fact, in point four of his memorandum, the plaintiff states that "the Department is correct, Young is not appealing from an `order, denial or decree' of the Newington Probate Court; Young is appealing from the November 1, 2004 action of the Department[.]" (Plaintiff's Memorandum, p. 6.) However, in filing this appeal, the plaintiff has apparently ignored the relevance of the adverse resolution of a prior appeal, Young v. Bonee, where the court, Cohn, J., granted summary judgment against the plaintiff and another heir because the succession tax issue had been addressed in the final decree of the probate court and could not be relitigated under the doctrine of collateral estoppel.
See footnote six.
See footnote three.
Point four of the plaintiff's memorandum is also not persuasive because the plaintiff relies on General Statutes § 12-39s for the proposition that the succession taxes were "illegally collected" and, as a result, the commissioner must make amends for the denial of the plaintiff's claim for refund. However, § 12-39s does not authorize such an appeal. See Chatterjee v. Commissioner of Revenue Services, 48 Conn.Sup. 28, 34, 827 A.2d 801 (2003) ( 34 Conn. L. Rptr. 569) (commissioner's authority is discretionary). Furthermore, there is no basis for the plaintiff's claim that the commissioner erroneously or illegally assessed the succession tax against him because the allegations are directed against the commissioner's assessment of an erroneous or illegal tax against the estate itself.
Finally, in point 2B of his memorandum, the plaintiff requests a declaratory ruling by the commissioner pursuant to Regulations § 12-2-4a(a)(4), which provides, in relevant part, that "[t]he petition [for a declaratory ruling] shall state clearly the questions of applicability upon which a ruling is sought and the factual background of the issue." In her reply brief, the commissioner states that the plaintiff neither filed nor sought a declaratory ruling by the commissioner and that the plaintiff only requested that the commissioner make a refund of succession tax paid by the estate. (Defendant's Reply, p. 15.) A request for a tax refund is not equivalent to a request for a declaratory ruling.
For all the above reasons, the defendant's motion to dismiss counts one and two is granted. Judgment may enter in favor of the defendant dismissing this appeal without costs to either party.