Opinion
4492-22
03-09-2023
GAIL BREINES, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Christian N. Weiler, Judge
The petition filed to commence this case on February 7, 2022, does not bear the original signature of Lillian Lazar, petitioner, or of a practitioner admitted to practice before this Court, as required by the Tax Court Rules of Practice and Procedure. The petition, which was filed by Gail Breines (Ms. Lazar's daughter), indicates that petitioner died on March 8, 2021, prior to the filing of the petition. Attached to the petition is a copy of Ms. Lazar's death certificate.
On February 17, 2023, respondent filed a Motion to Substitute Parties and Change Caption, requesting that the Court amend this case's caption to include the "Estate of Lillian Lazar, Deceased." Attached to that motion is a declaration executed by Ms. Breines stating that, among other things, she is decedent's successor in interest (as defined by Cal. Civ. Proc. Code. § 377.11) and succeeds to the decedent's interest in this proceeding. Moreover, Ms. Breines declares that "[n]o 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."
Any action in this Court must be prosecuted by a proper party. Whether an individual has capacity to be substituted as a party is determined under local law. Rule 60(c), Tax Court Rules of Practice and Procedure; Fehrs v. Commissioner, 65 T.C. 346, 349 (1975). 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 § 377.30. In general, a decedent's successor in interest is "the beneficiary of the decedent's estate." Cal. Civ. Proc. Code § 377.11. California Civil Procedure Code § 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 an affidavit or declaration described in California Civil Procedure Code § 377.32. See Estate of Galloway, 103 T.C. 700 (1994).
The Court is satisfied that, upon the record before us, Ms. Breines is decedent's successor in interest under applicable California law.
Upon due consideration, it is
ORDERED that Gail Breines is appointed as special administrator of decedent's estate to conduct the litigation of this case pursuant to California Civil Procedure Code § 377.33 and, in that capacity, is substituted as the party-petitioner in this case. It is further
ORDERED that respondent's Motion to Substitute Parties and Change Caption is granted in that the caption of this case is amended to read: "Estate of Lillian Lazar, Deceased, Gail Breines, Special Administrator, Petitioner v. Commissioner of Internal Revenue, Respondent."