Opinion
8237-23
08-02-2024
PIO TOVAR HUERTA & HERLINDA R. MEDINA, DECEASED, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Kathleen Kerrigan Chief Judge.
The petition, filed on May 17, 2023, does not bear the original signature of petitioner Herlinda R. Medina or the signature of a practitioner admitted to practice before the Tax Court, as required by the Tax Court Rules of Practice and Procedure. The petition is signed by petitioner Pio Tovar Huerta. The petition indicates that petitioner Herlinda R. Medina is deceased.
It is well settled that unless the petition is filed by the taxpayer, or by someone lawfully authorized to act on his behalf, we are without jurisdiction. See Fehrs v. Commissioner, 65 T.C. 346, 348-349 (1975); Rule 60(a), Tax Court Rules of Practice and Procedure. In pertinent part, Rule 60(c) provides that "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."
Cal. Civ. Proc. Code section 377.31 authorizes a court to allow a pending action or proceeding to be continued by the decedent's personal representative or, if none, by the decedent's successor in interest. Cal. Civ. Proc. Code section 377.33 authorizes this Court to appoint a decedent's successor in interest as a special administrator for purposes of proceedings in this Court when appropriate to ensure proper administration of justice in the case. Pursuant to Cal. Civ. Proc. Code section 377.11, "decedent's successor in interest" means the beneficiary of the decedent's estate or other successor in interest who succeeds to a cause of action or to a particular item of property that is the subject of a cause of action.
Generally, if a taxpayer in a case before this Court has died, and if no formal probate proceedings are initiated, a proper motion may be filed, requesting that this Court appoint a special administrator of the taxpayer's estate, pursuant to the procedures described in Cal. Civ. Proc. Code sections 377.10 through 377.32, as more fully described in Estate of Galloway v. Commissioner, 103 T.C. 700 (1994). If a motion to appoint a special administrator is filed, the movant must provide the Court with the affidavit or declaration described in Cal. Civ. Proc. Code section 377.32.
By Order served May 16, 2024, the Court directed petitioner Pio Tovar Huerta to file a response, on or before June 6, 2024, advising the Court: (1) whether he or any person has been duly appointed the executor, personal representative, or fiduciary for the Estate of Herlinda R. Medina by a court of competent jurisdiction, and attaching thereto the corresponding letters testamentary or letters of administration; or (2) whether he commenced this case as the successor in interest to Herlinda R. Medina under California law and file with this Court an affidavit or declaration compliant with Cal. Civ. Proc. Code section 377.32.
On June 28, 2024, respondent filed a status report, in which he states that petitioner Pio Tovar Huerta sent him a letter requesting additional time to respond to the Court's Order served May 16, 2024.
Upon due consideration and in light of the foregoing, it is
ORDERED that the time withing which petitioner Pio Tovar Huerta shall file a response to the Court's Order served May 16, 2024, is extended to August 23, 2024. It is further
ORDERED that the Clerk of the Court shall attach the Court's Order served May 16, 2024, to the copy of this Order served on petitioners.