Opinion
34626-21S
08-17-2023
MARTHA B. ORNELAS & JUAN M. ORNELAS, DECEASED, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Kathleen Kerrigan, Chief Judge
The Petition in the above-captioned case seeks review of a notice of deficiency issued to petitioners Martha B. Ornelas and Juan M. Ornelas for their 2019 tax year. Although the caption of the Petition includes both petitioners, Mrs. Ornelas is the only signatory. In the Petition, Mrs. Ornelas states that Mr. Ornelas is deceased.
By Order issued June 16, 2023, the Court directed Mrs. Ornelas to advise the Court whether she or any person has been duly appointed the executor, personal representative, or fiduciary of Mr. Ornelas' Estate by a court of competent jurisdiction. The Court further directed Mrs. Ornelas to file an affidavit or declaration consistent with California Civil Procedure Code section 377.32 if (1) no such executor, personal representative, or fiduciary has been duly appointed, and (2) Mrs. Ornelas commenced this case as Mr. Ornelas' successor in interest.
On July 19, 2023, respondent filed a Motion to Dismiss for Lack of Jurisdiction as to Juan M. Ornelas, Deceased. Therein respondent states that Mrs. Ornelas is not duly qualified as either a fiduciary or personal representative of Mr. Ornelas' Estate. On that basis, respondent asserts that “the petition has not been timely filed by a fiduciary or personal representative legally entitled to institute a case on behalf of the decedent or the decedent's estate,” thereby warranting Mr. Ornelas' dismissal from this case. Respondent also states that Mrs. Ornelas has no objection to the granting of the Motion.
However, respondent's Motion also includes an affidavit signed by Mrs. Ornelas. Therein Mrs. Ornelas confirms that she is Mr. Ornelas' successor in interest under California law for purposes of this case. On July 20, 2023, Mrs. Ornelas filed as a Letter Dated July 12, 2023 (Letter), copies of her affidavit and Mr. Ornelas' death certificate.
It is well settled that unless the petition is filed by the taxpayer, or by someone lawfully authorized to act on his or her behalf, we are without jurisdiction. See Fehrs v. Commissioner, 65 T.C. 346, 348 (1975); Rule 60(a), Tax Court Rules of Practice and Procedure. In pertinent part, Tax Court Rule 60(c) provides that "[t]he 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."
The Petition and death certificate indicate that Mr. Ornelas resided in California at the time of his death. 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 § 377.30. In general, a decedent's successor in interest is "the beneficiary of the decedent's estate." Cal. Civ. Proc. Code § 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 v. Commissioner, 103 T.C. 700, 701-05 (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 id.
Respondent's Motion does not address the applicability of Estate of Galloway and the California Civil Procedure Code to this case. Furthermore, respondent's statement that Mrs. Ornelas has no objection to respondent's Motion is inconsistent with her affidavit. By filing the affidavit in response to our June 16, 2023, Order, Mrs. Ornelas confirmed that she commenced this case as Mr. Ornelas' successor in interest. Because we are satisfied that her affidavit complies with California Civil Procedure Code section 377.32, the Court will appoint Mrs. Ornelas special administrator of the Estate of Mr. Ornelas.
The foregoing considered, and for cause, it is
ORDERED that respondent's Motion to Dismiss for Lack of Jurisdiction as to Juan M. Ornelas, Deceased, is denied. It is further
ORDERED that petitioner's Letter, filed July 20, 2023, is recharacterized as petitioner's Motion to Substitute Parties and Change Caption. It is further
ORDERED that petitioner's Motion to Substitute Parties and Change Caption is granted, in that it is:
ORDERED that, pursuant to section 377.33 of the California Code of Civil Procedure, Martha B. Ornelas, as the successor in interest of Juan M. Ornelas, Deceased, is appointed special administrator of the Estate of Juan M. Ornelas, Deceased, solely for the purpose of maintaining this proceeding. It is further
ORDERED that the Estate of Juan M. Ornelas, Deceased, Martha B. Ornelas, Special Administrator, is substituted for petitioner Juan M. Ornelas, Deceased, in this case. It is further
ORDERED that the caption of this case is amended to read: "Martha B. Ornelas & Estate of Juan M. Ornelas, Deceased, Martha B. Ornelas, Special Administrator, Petitioners v. Commissioner of Internal Revenue, Respondent".