Opinion
14449-22
04-25-2023
RAYMOND W. JOHNSON, DECEASED, BUFFY ECKHARDT, PERSONAL REPRESENTATIVE, Petitioner(s) v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Kathleen Kerrigan Chief Judge
On June 10, 2022, the petition to commence this case was filed by Buffy Eckhardt, who represents that she is Raymond W. Johnson's personal representative. No letters testamentary, letters of administration, or order from a court of competent jurisdiction is attached to the petition to substantiate Ms. Eckhardt's claim that she is Mr. Johnson's personal representative.
On March 24, 2023, the parties filed a Proposed Stipulated Decision. On March 28, 2023, the Court issued an Order directing Ms. Eckhardt to provide documentation supporting her claim that she is Mr. Johnson's personal representative. On April 21, 2023, Ms. Eckhardt filed a Response to the Court's Order, to which is attached copies of Mr. Johnson's will and excerpts from his revocable trust agreement, as well as Mr. Johnson's death certificate. It appears that Ms. Eckhardt was named in Mr. Johnson's will as his personal representative, but no probate proceeding has been commenced with respect to Mr. Johnson's estate. Accordingly, Ms. Eckhardt has not been duly appointed by a court of competent jurisdiction to serve as personal representative of Mr. Johnson's estate.
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 as to that taxpayer. Fehrs v. Commissioner, 65 T.C. 346, 348-349 (1975). At this juncture, as the petition does not bear the signature of Raymond W. Johnson or someone lawfully authorized to act on his estate's behalf, the Court appears to lack jurisdiction with respect to Mr. Johnson.
However, in relevant part, Tax Court 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 such ratification shall have the same effect as if the case had been properly brought by such party." A decedent's estate may be represented by someone acting in a fiduciary capacity, such as a court-appointed executor, administrator, or personal representative of the decedent's estate. Rule 60(c), Tax Court Rules of Practice and Procedure, provides that "the capacity of a fiduciary or other representative to litigate shall be determined in accordance with the law of the jurisdiction from which such person's authority is derived."
The Court also notes that Mr. Johson resided in California at the time of his death. As relevant, therefore, in this case, 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. 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. Estate of Galloway, 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 with the Court the affidavit or declaration described in California Civil Procedure Code section 377.32. Id.
Upon due consideration of the foregoing, it is
ORDERED that the caption of this case is amended to read: "Raymond W. Johnson, Deceased, Petitioner v. Commissioner of Internal Revenue, Respondent". It is further
ORDERED that, on or before May 25, 2023, Buffy Eckhardt and respondent shall confer concerning the following matters: (1) whether a probate estate has been or will be opened with respect to Mr. Johnson's (decedent) estate; (2) if decedent's estate has been probated, the name and address of the duly appointed fiduciary of decedent's estate and whether such fiduciary intends to prosecute this case on decedent's behalf by filing an appropriate Motion to Substitute Parties and Change Caption (to which should be attached relevant documentation supporting the individual's status as a fiduciary with legal capacity to represent decedent's estate); and (3) if decedent's estate has not been or will not be probated, the names and addresses of decedent's successors in interest, within the meaning of California Civil Procedure Code section 377.11, and whether any of those individuals intend to prosecute this case on decedent's behalf by filing a Motion to Substitute Parties and Change Caption accompanied by the affidavit or declaration provided for by California Civil Procedure Code section 377.32. It is further
ORDERED that, on or before June 8, 2023, respondent shall file a status report concerning the then-current status of this case, including information about the above-referenced matters set forth in the ordered paragraph above. The Court will continue to hold in abeyance the parties' Proposed Stipulated Decision.
CODE OF CIVIL PROCEDURE - CCP
PART 2. OF CIVIL ACTIONS [307 - 1062.20]
(Part 2 enacted 1872.)
TITLE 3. OF THE PARTIES TO CIVIL ACTIONS [367 - 389.5]
(Title 3 enacted 1872.)
CHAPTER 4. Effect of Death [377.10 - 377.62]
(Chapter 4 added by Stats. 1992, Ch. 178, Sec. 20.)
ARTICLE 3. Decedent's Cause of Action
(Article 3 added by Stats. 1992, Ch. 178, Sec. 20.)
377.30.
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, subject to Chapter 1 (commencing with Section 7000) of Part 1 of Division 7 of the Probate Code, and an action may be commenced by the decedent's personal representative or, if none, by the decedent's successor in interest.
(Added by Stats. 1992, Ch. 178, Sec. 20. Effective January 1, 1993.)
377.31.
On motion after the death of a person who commenced an action or proceeding, the court shall allow a pending action or proceeding that does not abate to be continued by the decedent's personal representative or, if none, by the decedent's successor in interest.
(Added by Stats. 1992, Ch. 178, Sec. 20. Effective January 1, 1993.)
377.32.
(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."
(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.
(Added by Stats. 1992, Ch. 178, Sec. 20. Effective January 1, 1993.)
377.33.
The court in which an action is commenced or continued under this article may make any order concerning parties that is appropriate to ensure proper administration of justice in the case, including appointment of the decedent's successor in interest as a special administrator or guardian ad litem.
(Added by Stats. 1992, Ch. 178, Sec. 20. Effective January 1, 1993.)