Opinion
2850-23SL
05-15-2024
STANLEY H. SHURE & STACY M. SHURE, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Adam B. Landy Special Trial Judge
This collection due process case is calendared for trial at the Los Angeles, California, Trial Session of the Court scheduled to commence on October 7, 2024.
Petitioners filed a Petition for review of a Notice of Determination Concerning Collection Actions under IRC Sections 6320 or 6330. Petitioners contend that they have experienced changed financial circumstances and the settlement officer abused her discretion in sustaining the filing of the Final Notice of Intent to Levy.
On August 10, 2023, the Court was notified that petitioner Stanley H. Shure passed away on June 25, 2023. However, the Court does not know whether (1) a representative or fiduciary is authorized to act on behalf of petitioner Stanley H. Shure's estate; (2) there is a probate proceeding currently open; and (3) petitioner Stanley H. Shure has any ascertainable heirs at law. Upon information and belief, petitioner Stanley H. Shure's heirs at law, in addition to petitioner Stacy M. Shure, are Peter Shure and Joshua Shure.
The Court also directs the parties to file reports: (1) identifying the specific issues remaining in dispute, (2) discussing whether the parties have met and conferred, either in person or by telephone, to discuss the issues remaining in dispute, (3) confirming whether the underlying liability is at issue in this case, (4) informing the Court whether either party plans to file any pretrial motion(s) and, if so, the nature of such motion(s), and (5) the status of the preparation of a stipulation of facts.
The premises considered, it is
ORDERED that the caption of this case is amended to read "Stanley H. Shure, Deceased & Stacy M. Shure, Petitioners v. Commissioner of Internal Revenue, Respondent." It is further
ORDERED that, on or before June 14, 2024, the parties shall confer concerning the following matters: (1) whether a probate estate has been or will be opened with respect to the decedent's estate; (2) if decedent's estate has been probated, the name and address of the duly appointed fiduciary of decedent's estate and whether such fiduciary intends to prosecute this case on decedent's behalf by filing an appropriate Motion to Substitute Parties and Change Caption (to which should be attached relevant documentation supporting the individual's status as a fiduciary with legal capacity to represent decedent's estate); and (3) if decedent's estate has not been or will not be probated, the names and addresses of decedent's successors in interest, within the meaning of California Civil Procedure Code section 377.11, and whether any of those individuals intend to prosecute this case on decedent's behalf by filing a Motion to Substitute Parties and Change Caption accompanied by the affidavit or declaration provided for by California Civil Procedure Code section 377.32. 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. It is further
ORDERED that, on or before June 14, 2024, the Commissioner 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. The Commissioner shall attach a copy of decedent's death certificate to his status report.
ORDERED that, on or before June 21, 2024, the parties shall file with the Court a stipulation or certification of the administrative record in this case in accordance with Rule 93, Tax Court Rules of Practice and Procedure. It is further
ORDERED that, on or before July 31, 2024, petitioners and the Commissioner shall file written reports (jointly or separately) with the Court as more fully described in this Order.
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 om 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 he 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 he final order showing the distribution of he decedent's cause of action o the successor in interest.
5) Either of he following, as appropriate, with facts in support hereof:
(A) "The affiant or declarant is the decedent's successor in interest (as defined in Section 377.11 of he 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 o commence the action or proceeding or o be substituted or the decedent n the pending action or proceeding."
7) "The affiant or declarant affirms or declares under penalty of perjury under the laws of he State of California that he foregoing is true and correct."
b) Where more than one person executes the affidavit or declaration under his section, the statements required by subdivision
a) shall be modified as appropriate to reflect that fact.
c) A certified copy of he decedent's death certificate shall be attached to the affidavit or declaration.
Credits (Added by Stats.1992, c. 178 (S.B.1496) § 20.)
Editors'
LAW REVISION COMMISSION COMMENTS
1992 Addition
Section 337.330 [sic] is new. The affidavit provided in this section is drawn from the affidavit provided in Probate Code Section 13101. [22 Cal.L.Rev.Comm.Repors 895 (1992)].
Notes of Decisions (11) West's Ann. Cal. C.C.P. § 377.32, CA CIV PRO § 377.32
Current with urgency legislation through Ch. 8 of 2024 Reg.Sess. Some statute sections may be more current, see credits or details.