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Giamelli which were not disclosed on the income tax return in
order to conceal this illegal activity. The estate would like to
disclose this alleged fraudulent scheme in order to deduct the
alleged illegal payments and thereby show that the tax due should
be less than originally reported.
Discussion
I. Motion To Dismiss for Lack of Prosecution
Respondent first moves for dismissal for lack of prosecution
because no party has been substituted for Mr. Giamelli since his
death in July of 2005.
Under Rule 63(a), “If a petitioner dies, the Court, on
motion of a party or the decedent’s successor or representative
or on its own initiative, may order substitution of the proper
parties.” Under Rule 60(c), the capacity of an individual to be
substituted is determined by local law. Under New York law, “A
personal representative is a person who has received letters to
administer the estate of a decedent.” N.Y. Est. Powers & Trusts
Law sec. 1-2.13 (McKinney 1998).
At a hearing before this Court on respondent’s motion to
dismiss, counsel for Mrs. Giamelli filed a motion to substitute
as the petitioner, the Estate of Joseph Giamelli, Deceased, Joann
Giamelli, Executrix, in the place of Joseph Giamelli. Counsel
represented to the Court that Mrs. Giamelli had received letters
to administer her husband’s estate. While Mrs. Giamelli’s motion
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