- 58 -
occurred in another state and even though most of the records are
in the other state. Caleshu v. Wangelin, supra at 95-96 and n.4.
For a refund of Federal estate taxes, the executor is the
proper person to bring the refund suit. Hofheinz v. United
States, 511 F.2d 661 (5th Cir. 1975). The Court of Appeals for
the Fifth Circuit pointed out that the executor actually paid the
estate tax (sec. 2002) and was the proper plaintiff-taxpayer for
purposes of the refund suit. Similarly, the proper venue for a
suit brought by an executor for refund of estate taxes is the
judicial district where the executor resides. Kruskal v. United
States, 178 F.2d 738 (2d Cir. 1950).
In the Kruskal case the executors of the estate were
residents of New York. At the time of the decedent's death, he
was a resident of Connecticut. The letters testamentary were
issued to the executors by the Probate Court for the District of
Roxbury, Connecticut, the district of last residence of the
decedent. Without obtaining ancillary letters in New York, the
executors sued in the U.S. District Court for the Southern
District of New York to recover the Federal estate tax they had
paid. The Government moved to dismiss on the ground that venue
would be only in the District Court for Connecticut and on the
further ground that capacity to sue under rule 17(b) of the
Federal Rule of Civil Procedure depended on New York law, and
that New York law did not permit foreign executors to sue in the
courts of New York in a representative capacity. The District
Page: Previous 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 NextLast modified: May 25, 2011