Campbell v. Cory

Opinion

ROTH, P. J.

Albert H. Colefield died in the County of Los Angeles on January 27, 1979, and proceedings were instituted in the superior court sitting in probate for the administration of his estate. Following his demise but prior to the fixing of California inheritance taxes associated with the event, appellant Pauline Campbell, in a separate superior court action, obtained a judgment whereunder, in general, she was held entitled to recover “one-half of the assets” of the decedent’s estate after certain deductions.

Thereafter, and in the course of the estate’s administration, an inheritance tax was assessed as to appellant in the amount of $1,390.70, attributable solely to the property thus awarded her.

Contending the inheritance tax referee had erroneously determined the liability, appellant filed her objections to his report, but these were overruled by the probate court, which signed an order fixing tax in the sum specified.

Having appealed from that order, appellant then abandoned the appeal on July 14, 1981, and instead on October 21, 1981, filed in the superior court her “Complaint To Determine Tax, To Compel Determination That No Tax Ever Accrued, and To Compel Refund of Monies Extracted By Duress.”

The substance of this complaint was that the inheritance tax assessed against appellant could not properly have been levied in the probate court proceedings

[994]

and that therefore the order purporting to fix it was void and subject to collateral attack. Authority for the proposition, in appellant’s view, was derived from the decision in

Allen

v.

Flournoy

(1972) 26 Cal.App.3d 774 [103 Cal.Rptr. 275].

There, one Albert Allen was a joint tenant of certain bank accounts with Sadie Phelps. When Ms. Phelps died, the inheritance tax report filed in her estate’s probate proceedings assessed a tax against Mr. Allen solely as a result of his being a surviving joint tenant. No objection to the report having been filed, an order fixing tax consistent therewith was made and, as here, became final.