Opinion
No. CV 02 0521605S
November 3, 2003
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION TO DISMISS
On November 15, 2002, the Probate Court for the district of Fairfield ordered that the plaintiff, Helen Clark Thiemann, executor of the estate of Mary Ellen Clark, be allowed to appeal the decision of the Probate Court for the district of Fairfield to the Superior Court for the judicial district of Hartford at Hartford and ordered that notice of the appeal be given to the Commissioner of Revenue Services and others. This matter was transferred to the Tax Court sitting in the judicial district of New Britain pursuant to Connecticut General Statutes § 12-391.
The substance of this appeal, taken from the documents and briefs filed by the parties, is that the decedent, Mary Ellen Clark, died on April 6, 1999 while an inpatient at the Carolton Chronic and Convalescent Hospital of Fairfield, Connecticut. The deceased had been admitted to the hospital on November 19, 1998 and remained there over four months until her death.
The executrix of the estate admitted the decedent's will for probate to the probate district of Fairfield because the decedent resided in the Fairfield probate district for the three months preceding the decedent's death. The executrix, on behalf of the estate, paid the Commissioner of Revenue Services (Commissioner) the sum of $69,300 on account for succession taxes due on the estate on December 30, 1999. One year later, on January 29, 2001, the estate filed an S-1 Succession Tax Return with the Fairfield Probate Court listing all of the assets of the estate including all intangible personal property. On September 19, 2001, the Commissioner issued a succession tax assessment showing a $15,691.43 overpayment of the succession taxes by the executrix by $15,691.43 and refunded this amount to the estate.
Subsequently, on April 15, 2002, the state of New York determined that the decedent was domiciled in that state and assessed a succession tax of $29,230 which was paid apparently without objection by the estate. The plaintiff now claims that a mistake or error was made on the part of the executrix, in that the decedent, while residing in Connecticut, was actually domiciled in the state of New York at the time of her death, and therefore, the intangible personal property located in New York should not be taxed by the state of Connecticut.
Following the determination by the state of New York that the deceased was domiciled in New York, the executrix, on April 19, 2002, made a demand upon the Commissioner for a refund of the succession taxes paid by the estate on the basis that the decedent was not a domiciliary of Connecticut on the date of her death, and therefore, no Connecticut succession tax was due on intangible personal property located in New York. The Commissioner denied this claim.
The executrix filed an application with the Fairfield Probate Court contesting the Commissioner's denial of the estate's claim for a refund of succession taxes. On August 2, 2002, the Fairfield Probate Court held a hearing on the estate's application on the Commissioner's denial of the estate's claim for a refund. The Probate Court denied the estate's application concluding that the executrix had voluntarily submitted to the continuing jurisdiction of the state of Connecticut, and that the application was not timely filed because it was filed more than 270 days after the Department's issuance of its computation and final receipt, citing General Statutes § 12-367 (b).
General Statutes § 12-367 (b) recites in pertinent part, "(b) Within sixty days after the mailing of the computation by the Commissioner of Revenue Services, the fiduciary or transferee or any other party in interest may make written application to the Probate Court for a hearing upon the determination of the tax or computation thereof."
Petitioner's appeal to the Probate Court challenged the Commissioner's finding that the decedent was domiciled in the state of Connecticut and her refusal to issue a refund of the succession taxes paid to the state. The, petitioner claims that if the decedent was not domiciled in Connecticut, the intangible personal property of the decedent, consisting of stocks, bonds, bank accounts, brokerage accounts, and IRA accounts located in New York could not be taxed by the state of Connecticut pursuant to General Statutes § 12-340.
General Statutes § 12-340 recites in pertinent part, "[a] tax is imposed, under the conditions and subject to the exemptions and limitations hereinafter prescribed, upon transfers, in trust or otherwise, of the following property or any interest therein or income therefrom: (a) When the transfer is from a resident of this state . . . (2) tangible personal property, except such as has an actual situs without this state; (3) all intangible personal property . . ."
The Probate Court, in denying the petitioner's appeal for a refund, based its decision on § 12-367 (b) which deals with a challenge to the Commissioner's computation of the succession tax, instead of § 12-367 (d), which involves a claim for a tax refund based on error or mistake. However, this is a distinction without a difference because the time within which to take an appeal from an adverse order of the Probate Court is governed by General Statutes § 45a-187 not § 12-367 (b) or § 12-367 (d).
There are two issues raised by the Commissioner in her motion to dismiss. The first issue is whether the petitioner's present appeal was timely taken. The second issue is whether the Commissioner is a party to this appeal.
The Commissioner claims that the present appeal was commenced more than thirty days after the date of the probate order on October 31, 2002, citing § 45a-187. The petitioner's response is that she was required to seek permission from the Probate Court in order to take an appeal from its order. The petitioner claims that the Probate Court on November 15, 2002 granted her permission to file an appeal and that the thirty-day appeal period in § 45a-187 runs from that date.
The appeal to this court, dealing with the Commissioner's decision not to grant a refund of the succession taxes, was taken from the Probate Court's adverse decision dated October 31, 2002. However, in doing so, the petitioner followed the general practice of filing a motion directed to the Probate Court for permission to take the appeal to the Superior Court. The Probate Court granted this motion to appeal, and therefore the present appeal is from the order of the Probate Court directing the petitioner to appeal its decision of October 31, 2002.
General Statutes § 45a-187 requires that an appeal from a decision of the Probate Court must be taken within thirty days of the order or decision of the Probate Court referred to in General Statutes § 45a-186. On the face of it, it would appear that the time to take an appeal in this case would expire either on thirty days after October 31, 2002 or thirty days after November 15, 2002. However, the petitioner claims that the appeal period to this court runs from November 15, 2002, the date the Probate Court granted the petitioner's motion to appeal its decision of October 31, 2002. The petitioner gave bond for the appeal, and subsequently on December 4, 2002 the petitioner commenced this present appeal by service of process. It is the petitioner's claim that her thirty-day appeal period recited in § 45a-187 begins with the date of the decree of the Probate Court granting the petitioner's right to appeal the Court's decision to the Superior Court.
The second prong of the Commissioner's motion to dismiss claims that the Commissioner was not made a party to this action.
We start our analysis here with the basic proposition that in an appeal to the Superior Court from a decision of the Probate Court, the Superior Court "sits as a court of probate and not as a constitutional court of general or common-law jurisdiction. It tries the question presented to it as novo, but in so doing it is . . . exercising a special and limited jurisdiction conferred on it by the statute authorizing appeals from probate." Marshall v. Marshall, 71 Conn. App. 565, 579, 803 A.2d 919, cert. denied, 261 Conn. 941, 808 A.2d 1132 (2002). In a probate appeal such as this, we are limited to the issues presented for review as defined in the reasons of appeal. Id., 570. The reasons of appeal in this action state that the Probate Court was in error in concluding that the petitioner was not entitled to claim a tax refund because she did not contest the Commissioner's decision within the sixty-day statutory period provided for in § 12-367 (b). We are limited to consider only this issue. Id., 569-70. We cannot consider or adjudicate any other issues that may arise from these proceedings. Id.
The issue presented by the reasons of appeal is whether the present appeal period runs from the date of the denial of the petitioner's claim for a refund dated October 31, 2002, or whether this appeal runs from the date of the Probate Court order on November 15, 2002, granting the petitioner permission to file an appeal with the Superior Court.
General Statutes § 45a-187 recites in pertinent part: "(a) An appeal under section 45a-186 . . . shall be taken within thirty days . . ." General Statutes § 45a-186 also provides, in pertinent part: "(a) Any person aggrieved by any order, denial or decree of a court of probate in any matter, unless otherwise specially provided by law, may appeal therefrom to the Superior Court . . ." Neither § 45a-186 or § 45a-187 is specific as to which order of the Probate Court in this case the thirty-day period applies. This confusion has been addressed in 1 W. Locke P. Kohn, Connecticut Probate Practice (1951) § 199, p. 403.
Section 199 of Locke Kohn recites: "Method of Taking Appeal Motion for Appeal. The statute is not at all specific as to how an appeal from probate shall be taken. The basic statute simply provides that any person aggrieved by any order, denial or decree of a Court of Probate may `appeal therefrom to the superior court . . . but . . . shall give bond, with sufficient surety to the state, to prosecute such appeal to effect.' That the appeal is by motion to the Probate Court followed by a decree of the Probate Court allowing the appeal and specifying the notice thereof to be given, is assumed, though not expressly provided, by other sections of the statutes and by the judges of the Superior Court in providing forms for the use of the bar in preparing appeals from probate. The only other requirement of the statute is that the interest of the appellant be stated in the motion for appeal unless it shall already appear on the face of the proceedings and records of the Probate Court."
We recognize that "(c)ourts of Probate are strictly statutory tribunals exercising only such powers as are conferred upon them by statute and having jurisdiction only when the facts upon the existence of which the Legislature has conditioned their exercise of power exist . . ." Palmer v. Reeves, 120 Conn. 405, 408-09, 182 A. 138 (1935). However, we are unaware of any specific statutory procedure that requires a party to a probate proceeding to seek permission from the Probate Court prior to taking an appeal from the decision, order or decree of the Probate Court. As Locke Kohn point out, the appeal process in probate proceedings has been adopted by the judges of this state. See 1 W. Locke P. Kohn, supra, p. 403 n. 3. See also J. Kaye, W. Effron, J. Kaye, 34 Connecticut Practice Series: Practice Book Annotated (1996) Form 1004.7, p. 145, which sets forth a form for a motion directed to the Probate Court for permission to appeal followed by a form of a decree by the Probate Court allowing such an appeal.
It would appear that a long-standing practice exists in this state of seeking permission from the Probate Court prior to instituting an appeal from a Probate Court's order to the Superior Court. "From a very early period in the history of our state provision has been made by law for appeals in probate causes This apparently absolute right of appeal is limited however by certain conditions. It exists only in favor of a party `aggrieved' in a matter not otherwise specially provided for by law; a bond with sufficient surety to prosecute the appeal to effect must be given; and the motion, application or request for the allowance of the appeal to the proper court, must be made to the probate court within the time limited by law for making the same." Orcutt's Appeal from Probate, 61 Conn. 378, 382, 24 A. 276 (1892). We note in Haylett v. Commission on Human Rights Opportunities, 207 Conn. 547, 550, 541 A.2d 494 (1988) the court recognized the allowance of appeals from Probate Courts since colonial times and that General Statutes § 45-294 (now 45a-192) sanctioned the process of the Probate Court allowing an appeal to the Superior Court. We are further guided by the decision of the court in Fuller v. Marvin, 107 Conn. 354, 357, 140 A. 731 (1928) which states, citing Orcutt's Appeal from Probate, that the prerequisite to taking an appeal from an order, decision or decree of the probate court is to first request permission from the probate court to appeal and this request cannot be made "more than a month after the decree appealed from." See also Heiser v. Morgan Guaranty Trust Co., 150 Conn. 563, 565-66, 192 A.2d 44 (1963).
We conclude that in a probate appeal, the aggrieved party challenging the decision, order or decree of the court must comply with § 45a-186 and § 45a-187 by filing a motion or petition to the Probate Court for permission to appeal its decision, order or decree within thirty days following the issuance of the decision, order or decree that is being challenged. If we followed the petitioner's argument that the thirty-day appeal period runs not from the date of the decision, order or decree being challenged, but rather from the date that the request for permission to appeal is granted, the thirty-day appeal period in § 45a-187 would be meaningless. We cannot rewrite § 45a-187 to extend the appeal period in probate matters to run from the date the probate court grants permission to appeal its decision to the Superior Court. See State v. Morrissette, 265 Conn. 658, 668, 830 A.2d 704 (2003).
In this case, although the petitioner had two years to seek a refund of taxes from the Commissioner based on mistake or error, as provided for in § 12-367 (d), once the petitioner challenged the Commissioner's refusal in the Probate Court and received an adverse decision, her remedy was to appeal the Probate Court's decision by seeking permission to appeal to the Superior Court within the thirty-day appeal period provided for in § 45a-187. The petitioner's time to take an appeal to the Superior Court ran from October 31, 2002, the date of the decision of the probate court denying her relief from the Commissioner's decision, not from November 15, 2002, the date the Probate Court gave its permission to appeal. Fuller v. Marvin, supra, 107 Conn. 357-58. See also Willard v. McKone, 155 Conn. 413, 421, 232 A.2d 322 (1967).
"The appeal in the instant case, upon the record, was taken more than a month after the decree appealed from. This record is conclusive as to this fact; the appellants cannot by their answer change it . . . The allegation of the plaintiffs' answer to the plea that they made their claim of an appeal which was duly accepted by the Court of Probate within the statutory period of a month, does not help to supply the essential requirement that the appeal be allowed within the required period of a month." (Citations omitted.) Fuller v. Marvin, supra, 107 Conn. 357-58.
The second point in the Commissioner's motion to dismiss is that the Commissioner was not made a party to this action. We disagree. The Commissioner is an integral part of this appeal by virtue of § 12-367 (d) which provides, in pertinent part, "[w]ithin ninety days of his receipt of such claim for refund the Commissioner of Revenue Services shall file with the Court of Probate and mail to the fiduciary or transferee a revised computation of the tax or a notice of the rejection of the claim for refund. Further proceedings upon such revised computation or rejection shall be taken in accordance with the provisions of subsection (b) of this section." Section 12-367 (b) allows the petitioner to contest the Commissioner's decision rejecting the claim of a refund by an appeal to the Probate Court and from there to appeal the Probate Court's decision "as provided for appeals from other decrees and orders of such court."
The Probate Court's decree of October 31, 2002 clearly recites that the purpose of the hearing set by the court was "the petitioner's application for a Hearing on determination by Commissioner of Revenue Services that Decedent's Claim for Refund be Denied." The decree of the Probate Court allowing an appeal from probate recites that the petitioner and the estate are aggrieved by the order and decree of the Probate Court dated October 31, 2002, and ordered that notice of the appeal be given to the Commissioner. The Commissioner acknowledges service of the appeal.
The Commissioner's sole complaint that she is not a defendant in this action is that the heading of the appeal lists the Estate of Mary Clark as the named defendant. Regardless of the heading of the appeal, it is clear from the reasons stated by the petitioner that the real focus of this appeal to the Superior Court is the determination of the Probate Court that it could not hear the petitioner's complaint against the Commissioner because of a failure to timely appeal the Commissioner's decision. We find no substance to the Commissioner's claim that this action should be dismissed because the Commissioner was not made a party to this action.
We conclude that the plaintiff in this action was required to appeal the October 31, 2002 decision of the Probate Court within thirty days of that date, not the date the Probate Court granted the plaintiff permission to appeal its decision to the Superior Court. The Commissioner's motion to dismiss this action for failure of the plaintiff to appeal within the statutory period provided in § 45a-186 and § 45a-187 is well taken.
Accordingly, the Commissioner's motion to dismiss for lack of jurisdiction is granted without costs to either party.
Arnold W. Aronson Judge Trial Referee