Troy Enters. Trust v. Commissioner

2000 T.C. Memo. 227, 80 T.C.M. 99, 2000 Tax Ct. Memo LEXIS 266

• Court: United States Tax Court
• Decided: July 28, 2000
• Docket: No. 17893-99
• Status: Unpublished

Opinion

TROY ENTERPRISES TRUST, JOHN P. WILDE, TRUSTEE & YALE ENTERPRISES TRUST, JOHN P. WILDE, TRUSTEE, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent

Troy Enters. Trust v. Commissioner

No. 17893-99

United States Tax Court

T.C. Memo 2000-227; 2000 Tax Ct. Memo LEXIS 266; 80 T.C.M. (CCH) 99; T.C.M. (RIA) 53967;

July 28, 2000, Filed

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An appropriate order of dismissal will be entered.

John P. Wilde, for petitioners.

John W. Duncan, for respondent.

Vasquez, Juan F.

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VASQUEZ

MEMORANDUM OPINION

VASQUEZ, JUDGE: This case is before the Court on respondent's motion to dismiss for lack of jurisdiction.

Unless otherwise indicated, all section references are to the Internal Revenue Code in effect for the year in issue, and all Rule references are to the Tax Court Rules of Practice and Procedure.

BACKGROUND

Petitioners ¹ are trusts organized under the laws of Arizona. On September 9, 1996, each petitioner filed a 1995 U.S. Income Tax Return for Estates and Trusts (collectively, the returns). The returns listed Morgan, Kramer & Strauss, LLC (Morgan, Kramer), as the fiduciary, and Cliff Jennewin signed the returns as the "trustee agent".

Upon commencement of the examinations of the returns, respondent requested complete copies of the trust documents from petitioners. Petitioners failed to provide any trust documents and to cooperate in any way during the examinations.

On September 1, 1999, respondent issued separate notices of deficiency to petitioners. The notices of deficiency identified Morgan, Kramer as trustee of both trusts.

On November 29, 1999, petitioners filed a joint petition in this Court. John P. Wilde (Mr. Wilde) signed the petition on behalf of petitioners, wherein he identified himself as "trustee".

On January 27, 2000, respondent filed a motion to dismiss for lack of jurisdiction (respondent's motion) on the grounds that pursuant to Rule 60, Mr. Wilde is not the proper party to bring this action.

On February 22, 2000, petitioners filed a joint response to respondent's motion (petitioners' response). In petitioners' response, petitioners argue that Mr. Wilde is their trustee and thus, the proper party to bring this action. In support of their contention, petitioners attached two identical documents entitled "Minute -- Morgan, Kramer & Strauss L.L.C." (the minutes). The minutes provide, in relevant part:

     A special meeting of the members has been called  for the

   purpose of amending the purpose and operation  of the L.L.C.

               *  *  *  *  *  *

     It is hereby resolved that it is in the best  interest of

   all parties concerned to replace the  trustee on all trusts

   where the LLC is named. To this  end and in fulfilling the

   requirements for succession  John P. Wilde and Jimmy Chisum have

   been selected as  successors.

     By agreement the appointment of Wilde and Chisum and the

   withdrawal of Stern and Stein are simultaneous and signatures

   hereto signify a full and total change in trusteeship,

   responsibility, custody and ownership of corpus, papers, and all

   legal affairs (emphasis added).

Cliff Jennewin and Richard Scarborough signed the minutes on behalf of Morgan, Kramer. Mr. Wilde and Jimmy Chisum also signed the minutes to signify that they accepted the appointment as trustees.

In petitioners' response, they further argue:

   the issue concerning Mr. Wilde's capacity as Trustee falls

   within the exclusive jurisdiction of the superior

   court here in the State of Arizona. * * *  At this point, this

   court is without jurisdiction to examine the matter beyond the

   minute appointing Mr. Wilde as trustee and determine whether he

   is the duly authorized Trustee. In absence of evidence to the

   contrary the appointment of John P. Wilde as a Trustee, in the

   minutes * * * is presumptively valid unless some provision of

   Arizona Law or a court of competent jurisdiction under the laws

   of the State of Arizona have found that the appointment to be

   invalid. The Petitioner need not remind the Court of the

   consequences of taking any action over which subject

   matter is completely lacking.

On June 5, 2000, we held a hearing on respondent's motion wherein Mr. Wilde appeared on behalf of petitioners.

DISCUSSION

This Court is a court of limited jurisdiction. See Freytag v. Commissioner, 501 U.S. 868, 870, 115 L. Ed. 2d 764, 111 S. Ct. 2631 (1991). Jurisdiction is predicated upon the timely filing of a petition by the proper party. See secs. 6213 and 6214; Vincent Engg. Co. v. Commissioner, T.C. Memo 1993-435.

In accordance with Rule 60, a petition may be filed by and in the name of the person against whom the Commissioner determined the deficiency or by and with the full descriptive name of the fiduciary entitled to institute a case on behalf of such person. See Rule 60(a)(1). The capacity of a fiduciary to litigate in this Court shall be determined in accordance with the law of the jurisdiction from which such person's authority is derived. See Rule 60(c).

Petitioners are trusts organized under the laws of Arizona. Pursuant to Rule 60(c), Arizona law therefore applies in determining the capacity of Mr. Wilde to petition this Court. Under Arizona law, a trustee has the capacity to institute court proceedings on behalf of a trust and is thus the proper party to file a petition on behalf of a trust in this Court. See Ariz. Rev. Stat. Ann. sec. 14-7233.C.25 (West 1995).

Petitioners bear the burden of proving that this Court has jurisdiction by establishing affirmatively all facts giving rise to our jurisdiction. See Patz v. Commissioner, 69 T.C. 497, 503 (1977); Fehrs v. Commissioner, 65 T.C. 346, 348 (1975); Wheeler's Peachtree Pharmacy, Inc. v. Commissioner, 35 T.C. 177, 180 (1960); National Comm. to Secure Justice v. Commissioner, 27 T.C. 837, 839 (1957);Consolidated Cos. v. Commissioner, 15 B.T.A. 645, 651 (1929). In order to meet that burden, petitioners must provide evidence establishing that Mr. Wilde has authority to act on their behalf. See National Comm. to Secure Justice v. Commissioner, supra at 839-840; Coca-Cola Bottling Co. v. Commissioner, 22 B.T.A. 686, 700 (1931).

Petitioners refuse to provide the trust documents to respondent and to the Court. Petitioners submitted only the minutes as evidence. ² The minutes purport to be the minutes of Morgan, Kramer & Strauss L.L.C. Within the minutes, however, there is a reference to "Stern & Stein" which implies that the minutes are documenting the withdrawal of Stern & Stein as trustee and not the withdrawal of Morgan, Kramer as trustee. We note that Mr. Wilde was recently involved in another matter before this Court, Renaissance Enters. Trust v. Commissioner, T.C. Memo 2000-226, wherein Mr. Wilde claimed that he was appointed trustee by the resigning trustee, Stern & Stein. In Renaissance, Mr. Wilde submitted minutes from Stern & Stein as proof of his appointment which mirror the minutes submitted in this case except for the title on the top of the document. It appears that Mr. Wilde simply copied the minutes submitted in Renaissance and submitted them as Morgan, Kramer's minutes in the present case. We are not persuaded of the authenticity of the minutes.

Petitioners have failed to establish that the minutes submitted are in fact the minutes of Morgan, Kramer, that they document Morgan, Kramer's resignation as trustee and that they show that Mr. Wilde was subsequently appointed trustee. We have no way to determine whether: (1) Morgan, Kramer was the original trustee or was, at any time, a trustee; (2) Morgan, Kramer had the legal authority to name Mr. Wilde the successor trustee; and (3) the requirements of the trust for appointing a successor trustee were followed in appointing Mr. Wilde. Without the trust documents and/or other reliable evidence, we are not satisfied that Mr. Wilde has the required capacity to file a petition on behalf of petitioners in this Court.

In view of the evidentiary shortcomings in the record, we cannot conclude that Mr. Wilde has the requisite capacity to file a petition on behalf of petitioners. ³ We therefore shall grant respondent's motion.

To the extent not herein discussed, we have considered petitioners' other arguments and consider them to be without merit.

To reflect the foregoing,

An appropriate order of dismissal will be entered.

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Footnotes

• 1. References to "petitioners" are to Troy Enterprises Trust and Yale Enterprises Trust.

• 2. At the hearing, petitioners attempted to introduce into evidence two incomplete documents regarding the trust which were not accepted.

• 3. We note that Mr. Wilde is no stranger to this Court. Recently, in addition to the petition in Renaissance Enters. Trust v. Commissioner, T.C. Memo 2000-226, mentioned earlier, Mr. Wilde filed petitions in Scenic Wonders Gallery, LLC v. Commissioner, T.C. Memo 2000-64, and Photo Art Mktg. Trust v. Commissioner, T.C. Memo 2000-65. In those cases, we granted the Commissioner's motions to dismiss for lack of jurisdiction on the ground that Mr. Wilde lacked the requisite capacity to file petitions on behalf of those taxpayers.

  Additionally, Jimmy C. Chisum, who is listed as cotrustee in the minutes submitted by petitioners in the instant case, has filed petitions in at least three similar cases where motions to dismiss for lack of jurisdiction were granted on similar grounds. See Banana Moon Trust v. Commissioner, T.C. Memo 2000-73 (holding Mr. Chisum did not have the requisite capacity to file a petition on behalf of the taxpayers); Jeff Burger Prods., LLC v. Commissioner, T.C. Memo 2000-72 (similar holding); Bantam Domestic Trust v. Commissioner, T.C. Memo 2000-63 (similar holding).

  END FOOTNOTES