Opinion
7434-22
12-13-2023
ESTATE OF MANSOUR ROFEH, A.K.A. MARK COHEN ROFEH, DECEASED, MICHELLE ROFEH-LENSKY, CO-EXECUTOR, Petitioner(s) v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Kathleen Kerrigan, Chief Judge
The Petition filed to commence this case on April 6, 2022, seeks redetermination of a deficiency determined in the federal income tax of Mansour Rofeh for the taxable year 2016. The Petition states that Mr. Rofeh died testate on October 18, 2021, and that he was a resident of Los Angeles County, California, at the time of his death. The Petition further states that no proceeding was or is now pending in California for the administration of the decedent's estate. However, the Petition states that Michelle Rofeh-Lensky, the decedent's daughter, is the co-executor of the decedent's will and the successor trustee of the decedent's trust, and that no other person has a superior right to commence this proceeding or be substituted for the decedent.
In general, Rule 60(a) provides that a case shall be brought by the person against whom a deficiency has been determined or by a fiduciary entitled to institute a case on behalf of such person. The burden of proving that the Court has jurisdiction is on the taxpayer, and 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, this Court is without jurisdiction. See Fehrs v. Commissioner, 65 T.C. 346, 348-349 (1975). The capacity of a fiduciary or other representative to litigate in this Court is determined by state law. See Rule 60(c). Accordingly, any person bringing a case in this Court on behalf of a deceased taxpayer bears the burden of proving that he or she is entitled under state law to institute such a case. See Rule 60(a), (c); see also Fehrs, 65 T.C. at 348-349; Sander v. Commissioner, T.C. Memo. 2022-103; Clifton v. Commissioner, T.C. Memo. 1981-493.
All Rule references are to the Tax Court Rules of Practice and Procedure.
Notwithstanding the foregoing, 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 that such ratification shall have the same effect as if the case had been properly brought by such party.
As 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. See 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, as described in California Civil Procedure Code section 377.32. See Estate of Galloway v. Commissioner, 103 T.C. at 703.
Although the Petition indicates that Michelle Rofeh-Lensky has not been duly appointed by a state court of competent jurisdiction to represent the decedent's estate, it appears, based on the representations in the Petition, that it may be possible under California law for the Court to appoint her as a special administrator of the estate upon the filing of an appropriately executed affidavit or declaration. Accordingly, we will take action as set forth below.
Upon due consideration and for cause, it is
ORDERED that the Proposed Stipulated Decision, filed December 12, 2023, is recharacterized as a Settlement Stipulation. It is further
ORDERED that, on or before January 16, 2024, Michelle Rofeh-Lensky may file with the Court an affidavit or declaration, as described in California Civil Procedure Code section 377.32, in furtherance of seeking an appointment as a special administrator of the decedent's estate for purposes of these proceedings. It is further
ORDERED that the Clerk of the Court shall attach to the copy of this Order served on petitioner(s) a copy of California Civil Procedure Code section 377.32.
West's Annotated California Codes
Code of Civil Procedure (Refs & Annos)
Part 2. Of Civil Actions (Refs & Annos)
Title 3. Of the Parties to Civil Actions
Chapter 4. Effect of Death (Refs & Annos)
Article 3. Decedent's Cause of Action (Refs & Annos)
West's Ann.Cal.C.C.P. § 377.32
§ 377.32. Statement om successor in interest; information required
Currentness
a) The person who seeks to commence an action or proceeding or to continue a pending action or proceeding as the decedent's successor in interest under this article, shall execute and file an affidavit or a declaration under penalty of perjury under the laws of this state stating all of the following:
1) The decedent's name.
2) The date and place of he decedent's death.
3) "No proceeding is now pending in California for administration of the decedent's estate."
4) If the decedent's estate was administered, a copy of he final order showing the distribution of he decedent's cause of action to the successor in interest.
5) Either of he following, as appropriate, with facts in support hereof:
(A) "The affiant or declarant is the decedent's successor in interest (as defined in Section 377.11 of he California Code of Civil Procedure) and succeeds to the decedent's interest in the action or proceeding."
(B) "The affiant or declarant is authorized to act on behalf of the decedent's successor in interest (as defined in Section 377.11 of the California Code of Civil Procedure) with respect to the decedent's interest in the action or proceeding."
(6) "No other person has a superior right o commence the action or proceeding or o be substituted or the decedent n the pending action or proceeding."
(7) "The affiant or declarant affirms or declares under penalty of perjury under the laws of he State of California that the foregoing is true and correct."
b) Where more than one person executes the affidavit or declaration under his section, the statements required by subdivision a) shall be modified as appropriate to reflect that fact.
c) A certified copy of he decedent's death certificate shall be attached to the affidavit or declaration.
Credits
(Added by Stats.1992, c. 178 (S.B.1496) § 20.)
Editors'
LAW REVISION COMMISSION COMMENTS
1992 Addition
Section 337.330 [sic] is new. The affidavit provided in this section is drawn form the affidavit provided in Probate Code Section 13101. [22 Cal.L.RevComm.Reports 895 (1992)].
Notes of Decisions (7)
West's Ann. Cal. C.C.P. § 377.32, CA CIV PRO § 377.32
Current with Ch. 1 of 2023-24 1st Ex.Sess, and urgency legislation through Ch. 890 of 2023 Reg.Ses Some statute sections may be more current, see credits for details.