Opinion
15724-21S
10-27-2021
Dennis S. Hundsdorfer & Beverly A. Hundsdorfer, Petitioners v. Commissioner of Internal Revenue, Respondent
ORDER
Maurice B. Foley Chief Judge.
On September 20, 2021, the Court filed petitioners' letter dated September 15, 2021. Therein, petitioner Beverly A. Hundsdorfer advises that her spouse, petitioner Dennis S. Hundsdorfer, who did not sign the petition or the first amended petition in this case, died on May 31, 2021. Attached to the letter is a copy of decedent Mr. Hundsdorfer's death certificate, which indicates that he resided in California at the time of his death.
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). Accordingly, while it appears that the Court has jurisdiction with respect to Mrs. Hundsdorfer, we presently do not have jurisdiction with respect to decedent Mr. Hundsdorfer. However, Rule 60(a) provides in relevant part: "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 such ratification shall have the same effect as if the case had been properly brought by such party."
All Rule references are to the Tax Court Rules of Practice and Procedure.
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) 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 we presently do not have jurisdiction with respect to decedent Mr. Hundsdorfer, the foregoing demonstrates 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). Accordingly, we will direct the parties as set forth below.
Upon due consideration, it is
ORDERED that the caption in this case is amended to read: "Dennis S. Hundsdorfer, Deceased & Beverly A. Hundsdorfer, Petitioners v. Commissioner of Internal Revenue, Respondent". It is further
ORDERED that, at a reasonable date and time, but no later than December 27, 2021, the parties shall confer as to the status of this case, including: (1) whether the estate of decedent has been or will be probated; (2) if 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 decedent's estate; (4) if decedent's estate has not been or will not be probated, the names and addresses of 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 decedent's estate for purposes of this litigation; and (5) if there is any fiduciary duly authorized to represent decedent's estate or any individual willing to serve as decedent's successor in interest, whether that individual intends to file a proper motion to substitute parties and change caption. It is further
ORDERED that, on or before January 10, 2022, respondent shall file a written 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.