Opinion
19877-22
03-23-2023
JAMES R. CALHAN, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Courtney D. Jones, Judge
On August 30, 2022, a petition was filed commencing the above-docketed case. Subsequently, on February 14, 2023, respondent and Mary Susan Fuhrman Anderson moved, pursuant to Tax Court Rule 60(d), that the Court recognize Mary Susan Fuhrman Anderson as the next friend of petitioner.
This case is on the calendar of the Court's May 8, 2023 trial session for Des Moines, Iowa. In light of the status of the case, as discussed herein, the undersigned will strike it from the calendar and retain jurisdiction.
On February 24, the Court ordered respondent and Ms. Anderson to file a Supplement to their motion. On March 16, the parties filed a first supplement to the motion. The first supplement reports that petitioner died during the pendency of the motion. It therefore asks the Court to deny that motion.
We have held that a petitioner's death does not divest this Court of jurisdiction over his income tax liability for any taxable year already in issue. Nordstrom v. Commissioner, 50 T.C. 30 (1968). Rule 63(a)1 provides that if a petitioner dies, the Court, on motion of a party or the decedent's successor or representative or on its own initiative, may order substitution of the proper parties. Rule 60(c) controls the legal capacity of a representative in this Court. We apply local law to determine who has the capacity to be substituted as a party. Fehrs v. Commissioner, 65 T.C. 346, 349 (1975).
Petitioner resided in California at the time the petition was filed. 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 (West 2013). The decedent's successor in interest includes a beneficiary of the decedent's estate. Id. at sec. 377.11. A person who seeks to continue a pending action or 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. This Court is empowered to appoint a successor in interest who properly executes and files such an affidavit or declaration as a special administrator for purposes of this proceeding. Id. at section 377.33; see also Estate of Galloway v. Commissioner, 103 T.C. 700 (1994).
Upon due consideration and in light of the foregoing, it is
ORDERED that this case is stricken from the above-referenced trial session and the undersigned retains jurisdiction. It is further
ORDERED that the parties' Joint Motion to be Recognized as Next Friend, filed February 14, 2023 and as supplemented on March 16, 2023, is denied as moot. It is further
ORDERED that the caption of this case is amended to read: "James R. Calhan, Deceased, Petitioner v. Commissioner of Internal Revenue". It is further
ORDERED that, on or before May 22, 2023, respondent and Mary Susan Fuhrman Anderson shall file a response to this Order setting forth and discussing fully: (1) whether decedent's estate has been or will be probated, (2) the names and addresses of any heirs at law of decedent, and (3) the names and address of any successor in interest who desires to prosecute this case on behalf of decedent. It is further
ORDERED that in addition to regular service, the Clerk of the Court shall serve a copy of this order on Mary Susan Fuhrman Anderson at her address provided in the Motion to be Recognized as Next Friend.