Opinion
15004-21
09-30-2021
Johnnie R. Mcausland & Gail L. Mcausland, Petitioners v. Commissioner of Internal Revenue, Respondent
ORDER
Maurice B. Foley Chief Judge
The petition to commence this case was timely filed on May 3, 2021. Therein, petitioners seek review of a notice of deficiency dated March 15, 2021, issued to them for their 2017 taxable year. However, the petition indicates that petitioner Gail L. Mcausland died in 2020. Accordingly, while the petition was signed by petitioner Johnnie R. Mcausland, it does not bear the signature of decedent Mrs. Mcausland, as required by the Tax Court Rules of Practice and Procedure.
In general, a case in this Court must be brought by and in the name of the individual against whom a deficiency or liability has been asserted or by a fiduciary legally authorized to institute a case on behalf of such person. See Rule 60(a), Tax Court Rules of Practice and Procedure. Thus, unless the petition is filed by the taxpayer, or by someone lawfully authorized to act on the taxpayer's behalf, the Court lacks jurisdiction. See Fehrs v. Commissioner, 65 T.C. 346, 348-349 (1975). Where, as here, a taxpayer has died before having been issued a notice of deficiency, the taxpayer's estate may be represented by someone acting in a fiduciary capacity such as an executor, administrator, or personal representative. See Rule 60(c), Tax Court Rules of Practice and Procedure. However, any such person seeking to represent the estate must make an affirmative showing that he or she is lawfully authorized to so act under State law. See Fehrs v. Commissioner, 346 T.C. at 348-349.
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. 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 an affidavit or declaration described in California Civil Procedure Code section 377.32. See Estate of Galloway, 103 T.C. 700 (1994).
In view of the fact that decedent Mrs. Mcausland did not sign the petition in this case, we presently do not have jurisdiction with respect to her. However, as the foregoing demonstrates, it is possible under California law for her 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), Tax Court Rules of Practice and Procedure. 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: "Johnnie R. Mcausland & Gail L. Mcausland, Deceased, Petitioners v. Commissioner of Internal Revenue, Respondent". It is further
ORDERED that, at a reasonable date and time, but no later than November 1, 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 for decedent's estate 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 November 8, 2021, respondent shall file a written report concerning the then-current status of this case, including information about the above-referenced matters set forth in the preceding ordered paragraph. Respondent shall attach to his status report a copy of decedent's death certificate. 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.
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