Opinion
24647-21S
10-01-2021
AISIA KITALY & ERIC MSECHU, DECEASED, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Maurice B. Foley Chief Judge
The petition was signed by petitioner Aisia Kitaly and indicates that petitioner Eric Msechu is deceased. However, petitioner Aisia Kitaly failed to attach to the petition letters testamentary or letters of administration.
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.
Upon due consideration, it is
ORDERED that, on or before October 22, 2021, Aisia Kitaly shall file a Response to this Order advising the Court (1) whether she or any person has been duly appointed the executor, personal representative, or fiduciary for the Estate of Eric Msechu by a court of competent jurisdiction, and attaching thereto the corresponding letters testamentary or letters of administration; or (2) whether she commenced this case as the successor in interest to Eric Msechu under California law and file with this Court an affidavit or declaration compliant with Cal. Civ. Proc. Code section 377.32. Failure to comply with this Order may result in the Court dismissing petitioner Eric Msechu from this case for lack of jurisdiction. It is further
ORDERED that the Clerk of the Court shall attach to the copy of this Order served on petitioner, a copy of Cal. Civ. Proc. 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."
(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