Opinion
1865-23
09-29-2023
VASILIKI KUSULAS & PETER E. KUSULAS, DECEASED, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Kathleen Kerrigan Chief Judge.
On February 22, 2023, the petition to commence this case was filed on behalf of both petitioners by petitioner Vasiliki Kusulas, who represents that she is the special administrator with respect to the estate of petitioner Peter E. Kusulas, who was deceased when the petition was filed. No documentation is attached to the petition supporting Vailiki Kusulas' statement that she is the special administrator of the estate of Peter E. Kusulas (decedent).
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 was not filed by Peter E. Kusulas or someone who has demonstrated that he or she has the legal capacity to represent the decedent's estate, the Court may lack jurisdiction with respect to the decedent.
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."
Alternatively, the Court notes that Mr. Kusulas apparently resided in California at the time of his death. If so, 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, it is
ORDERED that, on or before October 27, 2023, the parties shall confer concerning the following matters: (1) whether a probate estate has been or will be opened with respect to the decedent's 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 pr declaration provided for by California Civil Procedure Code section 377.32 (see attached). It is further
ORDERED that, on or before November 13, 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. Respondent shall attach to his report a copy of the decedent's death certificate.