Opinion
18988-21
02-09-2023
LISA GRAY SHELLBERG, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Christian N. Weiler Judge
On December 20, 2022, respondent filed a Notice of Filing of Petition and Right to Intervene. In the Notice respondent advises: (1) that petitioner's spouse, Gordon E. Shellberg, Jr., is deceased (the Notice states that he died on November 22, 2019, prior to the filing of the petition); (2) that no representative or fiduciary is currently authorized to act on behalf the estate; and (3) that no probate proceedings were instituted. Respondent further advises that, in addition to petitioner, Mr. Shellberg's heirs at law are his two children, one of whom has no known address and may live outside the country. A copy of the death certificate was provided to the Court on January 5, 2023, demonstrating that Mr. Shellberg died in California.
In Fain v. Commissioner, 129 T.C. 89 (2007), the Court held that the right to intervene survives the death of the non-petitioning spouse and passes to his or her heirs. Moreover, 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. See Cal. Civ. Proc. Code sec. 377.30; see also Rule 60(c), Tax Court Rules of Practice and Procedure.
In general, a decedent's successor in interest is "the beneficiary of the decedent's estate." Cal. Civ. Proc. Code sec. 377.11. But California Civil Procedure Code section 377.33 also 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. See Estate of Galloway v. Commissioner, 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 as described in California Civil Procedure Code section 377.32. See Estate of Galloway v. Commissioner, 103 T.C. at 703.
Upon due consideration and for cause, it is
ORDERED that, in addition to regular service, the Clerk of the Court shall serve a copy of this Order on Kari Suer at the address provided in respondent's Notice. It is further
ORDERED that the Clerk of the Court shall attach to the copy of this Order served on Ms. Suer a copy of respondent's Notice of Filing of Petition and Right to Intervene. We note that, in addition to petitioner, Ms. Suer signed the petition filed to commence this case. It is further
ORDERED that, on or before March 1, 2023, Ms. Suer may exercise the heir at law's right to intervene in this case by filing a notice of intervention with the Court and attaching thereto a copy of this Order.