Opinion
1027-23
12-01-2023
ROMA L. MIGUEL & LEANDRO J. MIGUEL, DECEASED, v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Kathleen Kerrigan, Chief Judge.
On November 6, 2023, petitioners filed a Motion to Substitute Parties and Change Caption, in which petitioners state that petitioner Leandro J. Miguel died prior to the filing of the petition in this case, and petitioner Roma L Miguel, Leandro J. Miguel's surviving spouse seeks to substitute herself as the representative of petitioner Leandro J. Miguel's estate. No letters testamentary or order issued by a California State court of competent jurisdiction appointing petitioner Roma L. Miguel as representative of petitioner Leandro J. Miguel's estate is attached to the motion.
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 December 26, 2023, petitioners shall file: (1) a Supplement to their motion and attach thereto a copy of letters testamentary or letters of administration or a California State court order appointing petitioner Roma L. Miguel as representative of petitioner Leandro J. Miguel's estate; or (2) an appropriate motion to appoint a special administrator and provide an affidavit or declaration compliant with Cal. Civ. Proc. Code section 377.32.