Opinion
6864-20S
09-01-2021
Vivian D. Cosgriff, Deceased Petitioner v. Commissioner of Internal Revenue Respondent
ORDER
Maurice B. Foley Chief Judge
On July 28, 2021, the Court issued an Order To Show Cause, directing the parties to file a response in writing, showing cause why this case should not be dismissed for lack of jurisdiction on the ground that the petition was not filed by decedent Vivian D. Cosgriff, or by someone lawfully authorized to act on her behalf, and has not been ratified by such a person.
On August 18, 2021, respondent filed a Response to the Order To Show Cause, stating therein that he has identified a person, namely, decedent petitioner's son and only surviving heir, Julian M. Cosgriff, who is eligible and willing to prosecute this matter on behalf of decedent petitioner. On the same date, respondent filed a Motion To Change or Correct Caption, which we will recharacterize as a Motion To Substitute Party and Change Caption. Therein, respondent requests that Mr. Cosgriff be substituted as a party in this case and that the caption be changed accordingly. Respondent has attached thereto several relevant documents, including copies of (1) a birth certificate listing decedent petitioner as Mr. Cosgriff's mother, (2) a death certificate indicating that decedent petitioner died as a resident of California on February 22, 2020, and (3) a sworn affidavit wherein Mr. Cosgriff affirms, among other things, that he is the successor of decedent petitioner under California law. Respondent states in his motion that Mr. Cosgriff does not oppose the granting thereof.
Cal. Civ. Proc. Code section 377.33 authorizes the appointment of a decedent's successor in interest as a special administrator for purposes of proceeding in Court when in the interest of justice. See Estate of Galloway v. Commissioner, 103 T.C. 700 (1994). On the record presented, the Court is satisfied that Mr. Cosgriff should be appointed special administrator in this case and substituted on the Court's records as the party-petitioner.
In view of the foregoing, the Court will direct Mr. Cosgriff to file a Ratification of Petition. Additionally, in view of respondent's representation in his motion that a basis for settlement in this case has been reached, the Court will direct that the parties file a proposed stipulated decision or status report as set forth below.
Upon due consideration and for cause, it is
ORDERED that the Court's Order To Show Cause, served July 28, 2021, is hereby discharged. It is further
ORDERED that the Clerk of the Court shall recharacterize respondent's Motion To Change or Correct Caption, filed August 18, 2021, as respondent's Motion To Substitute Party and Change Caption. It is further
ORDERED that respondent's Motion To Substitute Party and Change Caption is granted in that Julian M. Cosgriff is appointed as special administrator of decedent's estate to conduct the litigation of this case pursuant to California Civil Procedure Code section 377.33 and, in that capacity, is substituted as the petitioner in this case. It is further
ORDERED that the caption of this case is amended to read: "Estate of Vivian D. Cosgriff, Deceased, Julian M. Cosgriff, Special Administrator v. Commissioner of Internal Revenue, Respondent". It is further
ORDERED that, on or before September 22, 2021, Julian M. Cosgriff shall file with the Court a Ratification of Petition, ratifying and affirming the filing of the petition to commence this case. Failure to comply with this Order may result in the dismissal of this case. It is further
ORDERED that the Clerk of the Court is directed to attach to this Order a form that Julian M. Cosgriff may use to comply with this Order. It is further
ORDERED that, on or before October 22, 2021, the parties shall file a proposed stipulated decision or a joint report regarding the then-present status of this case.
RATIFICATION OF PETITION
I, ___, Julian M. Cosgriff, have read the Petition filed with the Court on July 10, 2020, and hereby ratify and affirm the filing of said document by affixing my signature hereto.