Opinion
4036-18
02-09-2022
Houshang Melamed & Shahla Melamed Petitioners v. Commissioner of Internal Revenue Respondent
ORDER
L. Paige Marvel, Judge
This case is calendared for trial at the Court's Los Angeles, California, trial session scheduled to begin on February 28, 2022. On February 3, 2022, petitioner Shahla Melamed (Ms. Melamed), on behalf of herself and her deceased husband, filed a motion to substitute parties and change caption. In the motion, Ms. Melamed represents that her husband, petitioner Houshang Melamed (Mr. Melamed), died on December 25, 2018, and that she is Mr. Melamed's surviving spouse and the personal representative of his estate. Ms. Melamed, however, did not attach to the motion any letters testamentary or any order issued by a California State court of competent jurisdiction appointing Ms. Melamed as personal representative of Mr. Melamed's estate.
Rule 60(c), Tax Court Rules of Practice and Procedure, provides that "The capacity of an individual, other than one acting in a fiduciary or other representative capacity, to engage in litigation in the Court shall be determined by the law of the individual's domicile. * * * 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 a court to appoint a decedent's successor in interest as a special administrator for purposes of a court proceeding when appropriate to ensure proper administration of justice in the case. A person who seeks to continue a pending action as the decedent's successor in interest must file a motion to appoint a special administrator and execute and file an affidavit or declaration described in California Civil Procedure Code section 377.32. See Estate of Galloway v. Commissioner, 103 T.C. 700, 703 (1994). Upon due consideration, it is
ORDERED that this case is stricken for trial from the Court's February 28, 2022, Los Angeles, California, trial session and is continued. It is further
ORDERED that jurisdiction of this case is retained by the undersigned. It is further
ORDERED that, on or before May 13, 2022, petitioner Shahla Melamed shall file either (1) a supplement to her motion and attach thereto a copy of letters testamentary, letters of administration, or a California State court order appointing her as the personal representative of petitioner Houshang Melamed's estate; or 2) an appropriate motion to appoint a special administrator and provide an affidavit or declaration in accordance with Cal. Civ. Proc. Code section 377.32. 1