Opinion
3381-22
07-12-2023
STEVEN M. SPEIER & DEBORAH N. SPEIER, Petitioner(s) v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Kathleen Kerrigan Chief Judge
On January 27, 2022, the petition to commence this case was filed by petitioners, who seek review of a notice of deficiency issued for their 2019 tax year. On November 23, 2022, petitioners filed a Motion to Substitute Parties and Change Caption. In that motion, petitioners state that: (1) after filing the petition to commence this case, petitioner Deborah N. Speier (decedent) died; (2) pursuant to decedent's trust, James Bosley is the personal representative of decedent's estate; (3) the Estate of Deborah N. Speier, James Bosley, Executor, should be substituted in this case for decedent petitioner; and (4) respondent has no objection to the granting of the motion. A document titled Memorandum in Support of Motion to Change or Correct Caption, which consists of a copy of decedent's death certificate, was concurrently filed with the motion.
Any action in this Court must be prosecuted by a proper party. It is well settled that the Court's jurisdiction over a case continues unimpaired by the death of a petitioner. A decedent's estate generally may be represented by someone acting in a fiduciary capacity, such as an executor, administrator, or personal representative of the decedent's estate. Rule 60(c), Tax Court Rules of Practice and Procedure, provides that "the capacity of a fiduciary or other representative to litigate shall be determined in accordance with the law of the jurisdiction from which such person's authority is derived." Even if there has been no administration of a deceased petitioner's estate, this Court may formulate an appropriate procedure to bring such a case to a close, including affording a decedent's heirs at law an opportunity to take whatever action may be necessary to protect their interests. Nordstrom v. Commissioner, 50 T.C. 30 (1968).
As also 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. Cal. Civ. Proc. Code sec. 377.30. In general, a decedent's successor in interest is "the beneficiary of the decedent's estate." Cal. Civ. Proc. Code sec. 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, 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 described in California Civil Procedure Code section 377.32. See Estate of Galloway, 103 T.C. 700.
Upon due consideration of the foregoing, it is
ORDERED that the caption of this case is amended to read: "Steven M. Speier and Deborah N. Speier, Deceased, Petitioners v. Commissioner of Internal Revenue, Respondent". It is further
ORDERED that the Memorandum in Support of Motion to Change or Correct Caption is recharacterized as an Exhibit to Motion to Substitute Parties and Change Caption. It is further
ORDERED that, on or before August 31, 2023, the parties shall confer as to the status of this case, including: (1) whether the estate of decedent has been or will be probated; (2) if decedent's estate is being probated, the name and address of the court-appointed fiduciary for decedent's estate; (3) if decedent's estate has not been or will not be probated, the names and addresses of decedent's heirs at law/successors in interest and whether any of them are willing to serve, under California Civil Procedure Code section 377.33, as special administrator of decedent's estate for purposes of this litigation. It is further
ORDERED that, on or before September 14, 2023, the parties shall file a joint status report concerning this case, including information about the above-referenced matters set forth in the preceding ordered paragraph. The Court will hold in abeyance petitioners' Motion to Substitute Parties and Change Caption.
CODE OF CIVIL PROCEDURE - CCP
PART 2. OF CIVIL ACTIONS [307 - 1062.20]
(Part 2 enacted 1872.)
TITLE 3. OF THE PARTIES TO CIVIL ACTIONS [367 - 389.5]
(Title 3 enacted 1872.)
CHAPTER 4. Effect of Death [377.10 - 377.62]
(Chapter 4 added by Stats. 1992, Ch. 178, Sec. 20.)
ARTICLE 3. Decedent's Cause of Action
(Article 3 added by Stats. 1992, Ch. 178, Sec. 20.)
377.30.
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, subject to Chapter 1 (commencing with Section 7000) of Part 1 of Division 7 of the Probate Code, and an action may be commenced by the decedent's personal representative or, if none, by the decedent's successor in interest.
(Added by Stats. 1992, Ch. 178, Sec. 20. Effective January 1, 1993.)
377.31.
On motion after the death of a person who commenced an action or proceeding, the court shall allow a pending action or proceeding that does not abate to be continued by the decedent's personal representative or, if none, by the decedent's successor in interest.
(Added by Stats. 1992, Ch. 178, Sec. 20. Effective January 1, 1993.)
377.32.
(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 the 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 the final order showing the distribution of the decedent's cause of action to the successor in interest.
(5) Either of the following, as appropriate, with facts in support thereof:
(A) "The affiant or declarant is the decedent's successor in interest (as defined in Section 377.11 of the 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 to commence the action or proceeding or to be substituted for the decedent in the pending action or proceeding."
(7) "The affiant or declarant affirms or declares under penalty of perjury under the laws of the State of California that the foregoing is true and correct."
(b) Where more than one person executes the affidavit or declaration under this section, the statements required by subdivision (a) shall be modified as appropriate to reflect that fact.
(c) A certified copy of the decedent's death certificate shall be attached to the affidavit or declaration.
(Added by Stats. 1992, Ch. 178, Sec. 20. Effective January 1, 1993.)
377.33.
The court in which an action is commenced or continued under this article may make any order concerning parties that is appropriate to ensure proper administration of justice in the case, including appointment of the decedent's successor in interest as a special administrator or guardian ad litem.
(Added by Stats. 1992, Ch. 178, Sec. 20. Effective January 1, 1993.)