Opinion
11454-22S
01-19-2023
KAREN O. GANNION & TERRY B. GANNION, DECEASED, KAREN O. GANNION, SURVIVING SPOUSE, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Kathleen Kerrigan Chief Judge
The Petition filed to commence this case on May 21, 2022, indicates that petitioner Terry B. Gannion is deceased. However, no letters testamentary, letters of administration, or other probate court papers issued by a state court of competent jurisdiction appear to be attached to the Petition, and it is therefore not clear whether petitioner Karen O. Gannion, or any other individual, has been duly appointed to represent the estate of the decedent Mr. Gannion in this proceeding.
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. See Fehrs v. Commissioner, 65 T.C. 346, 348-349 (1975). Because the decedent Mr. Gannion did not sign the Petition, and it is not clear whether Mrs. Gannion (who did sign the Petition) has been lawfully authorized do so on the estate's behalf, the Court's jurisdiction over the estate is in question.
A decedent's estate may be represented by someone acting in a fiduciary capacity, such as an executor, administrator, or personal representative. Rule 60(c) of the Tax Court Rules of Practice and Procedure provides in relevant part: "The capacity of a fiduciary or other representative to litigate in the Court shall be determined in accordance with the law of the jurisdiction from which such person's authority is derived."
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.
While it is not clear whether any individual has been duly appointed to represent the estate of the decedent Mr. Gannion, even if no such individual exists, the foregoing shows that it is possible under California law for his estate to be represented in this proceeding by a successor in interest, and under our Rules such a person may ratify, on behalf of the estate, the timely filed petition in this case. See Rule 60(a), Tax Court Rules of Practice and Procedure. Accordingly, we will direct the parties as set forth below.
Upon due consideration and for cause, it is
ORDERED that the Proposed Stipulated Decision, filed January 3, 2023, is recharacterized as a Settlement Stipulation. It is further
ORDERED that, at a reasonable date and time, but no later than February 21, 2023, the parties shall confer as to the status of this case, including: (1) whether the estate of the decedent Mr. Gannion has been or will be probated; (2) if the decedent's estate is being probated, whether an executor, administrator, or other fiduciary has been duly appointed by a court of competent jurisdiction; (3) if so, the name and address of such duly appointed fiduciary for the decedent's estate; (4) if the decedent's estate has not been or will not be probated, the names and addresses of the 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 the decedent's estate for purposes of this litigation; and (5) if there is any duly appointed fiduciary to represent the decedent's estate or any individual willing to serve as decedent's successor in interest, whether that fiduciary or individual intends to file a proper motion to substitute parties and change caption. It is further
ORDERED that, on or before February 28, 2023, the parties shall file a joint report regarding the then-present status of this case, including information pertaining to the matters set forth in the preceding ordered paragraph. It is further
ORDERED that the Clerk of the Court shall attach to the copy of this Order served on petitioners 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 from 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 the 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 the final order showing the distribution of the decedent's cause of action to the successor in interest.
(5) Either of the following, as appropriate, with facts in support thereof:
(A) "The affiant or declarant is the decedent's successor in interest (as defined in Section 377.11 of the 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 to commence the action or proceeding or to be substituted for the decedent in the pending action or proceeding."
(7) "The affiant or declarant affirms or declares under penalty of perjury under the laws of the State of California that the foregoing is true and correct."
WESTLAW © 2017 Thomson Reuters. No claim to original U.S. Government Works.
§ 377.32. Statement from successor in interest; information..., CA CIV PRO § 377.32
(b) Where more than one person executes the affidavit or declaration under this section, the statements required by subdivision (a) shall be modified as appropriate to reflect that fact.
(c) A certified copy of the decedent's death certificate shall be attached to the affidavit or declaration.
Credits (Added by Stats.1992, c. 178 (S.B.1496), § 20.)
West's Ann. Cal. C.C.P. § 377.32, CA CIV PRO § 377.32 Current with urgency legislation through Ch. 14 of 2017 Reg.Sess
End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works. WESTLAW © 2017 Thomson Reuters. No claim to original U.S. Government Works. 2