Opinion
19641-21
10-21-2021
Mary Margaret Adams, Deceased Petitioner v. Commissioner of Internal Revenue Respondent
ORDER
Maurice B. Foley, Chief Judge
On October 13, 2021, respondent filed a Motion To Dismiss for Lack of Jurisdiction on the ground the petition was `not properly executed by or on behalf of decedent Mary Margaret Adams or decedent's estate. Among other things, in his motion respondent states/indicates that: (1) decedent died on March 20, 2021, before the petition in this case was filed on June 2, 2021; and (2) Catherine Brugger (decedent's niece who signed the petition) has advised respondent that decedent's estate has not been probated and that no personal representative or other fiduciary has been appointed by a State court of competent jurisdiction.
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 v. Commissioner, 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 November 17, 2021, respondent shall file a First Supplement to his motion to dismiss. In that First Supplement respondent shall set forth and discuss fully: (1) 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 (2) 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. 1