In re the Estate of Adamson

OPINION OF THE COURT

This is an application by the New York State Tax Commission for an order pursuant to section 962 (subd [b], par [5], cl [A], subel [i]) of the Tax Law amending the pro forma taxing order dated the 28th day of July, 1976, by increasing it from $3,053.88 to $3,720.59, as the result of changes made by the audit of the Federal estate tax return.

In the supporting affidavit, counsel for the commission alleges that the Internal Revenue Service’s closing letter dated May 19, 1977, was received by the commission on or about September 27, 1979. Counsel thereupon advised the fiduciary attorney to make an application for an amended order based upon the closing letter pursuant to subdivision (c) of section 962 of the Tax Law. To date, this request has been ignored. The affidavit of service indicates that copies of the moving papers were served upon the attorney fiduciary and the corporate trustee.

*666Counsel for the corporate trustee under the will of the testator have filed a notice of appearance together with an affidavit alleging that the administration of the executor was completed on or about December 7,1976, at which time he turned over the estate assets to the corporate trustee who has acted as such since that date. The affidavit further alleges that the trustee has no objection to the entry of the amended order requested by the Tax Commission but contends that since it was the executor’s responsibility to amend the taxing order, any costs and additional interest imposed by the Tax Law be assessed against the executor individually and not against the estate or the trust.

The pro forma taxing order dated the 28th day of July, 1976, expressly states that it was made subject to the Federal audit. The Tax Law imposes a duty on the executor to amend the order based upon the Federal audit. Any changes are to be reported to the Tax Commission within 90 days of the final determination of the Federal tax (Tax Law, § 962, subd [c]; § 249-w). Section 962 (subd [b], par [6]) of the Tax Law provides that upon the failure of the fiduciary to report the changes in the Federal report and file an amended taxing order, the commission may move to amend the pro forma taxing order at any time.

The commission’s motion to amend the pro forma taxing order is granted, with $50 costs to the State Tax Commission chargeable to the attorney fiduciary personally. The tax is due and payable at death and imposed upon the executor who may collect it from the interested persons (Tax Law, § 249-z, subd 1, par [a]). If the executor fails to pay the tax fixed, then it shall be paid by the “spouse, transferee, trustee, surviving tenant, person in possession of property” (Tax Law, § 249-bb, subd b). Since the tax and the interest thereon assessed by the order must be paid by the trustee, who has the estate assets, this court lacks the necessary authority, at this time, to assess the additional interest against the attorney fiduciary, who neglected to amend the pro forma taxing order since it was not requested in the moving papers. Inasmuch as there is a pending accounting proceeding by the trustee, it may amend the petition to request that relief and supplemental citation against the executor.