                         T.C. Memo. 2000-63



                       UNITED STATES TAX COURT



       BANTAM DOMESTIC TRUST, PRUDENT MAN TRUSTEE COMPANY,
                      TRUSTEE, Petitioner v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 16687-98.                 Filed February 29, 2000.



     Jimmy C. Chisum, for petitioner.

     Richard A. Rappazzo, for respondent.



                         MEMORANDUM OPINION


     CHIECHI, Judge:    This case is before the Court on respon-

dent's motion to dismiss for lack of jurisdiction (respondent’s

motion) and petitioner’s motion to substitute party and to change

caption (petitioner’s motion).   We shall grant respondent’s

motion and deny petitioner’s motion.
                               - 2 -


                            Background

     For purposes of respondent’s motion and petitioner’s motion,

the parties do not dispute the following factual allegations that

are part of the record.   During its taxable year 1994, petitioner

was a trust engaged in business in the State of Indiana.     Peti-

tioner filed a Federal income tax return for estates and trusts,

Form 1041 (return), for that taxable year, which was signed by

Jimmy C. Chisum as agent for the Prudent Man Trustee Co.

     Upon commencement of the examination of the 1994 return

filed by petitioner, respondent requested petitioner to provide

respondent with complete copies of the trust documents relating

to it.   Petitioner refused to provide respondent with the trust

documents or any other type of documentary evidence regarding who

was the first appointed trustee of petitioner.

     The notice of deficiency issued to petitioner was sent to

the following two addresses:

  Bantam Domestic Trust                Bantam Domestic Trust
  aka Snyder Poultry Processing        aka Snyder Poultry Processing
  Prudent Man Trustee Company,         Prudent Man Trustee Company,
    Trustee                              Trustee
  Post Office Box 138                  Post Office Box 204
  Harlan, Indiana 46743-0138           Snyder, Nebraska 68664-0204

     Petitioner filed a petition in this Court which was signed

on its behalf by Jimmy C. Chisum, as “Agent for Trustee Prudent

Man Trustee Company”, the purported trustee for petitioner.

     Respondent’s motion contends in pertinent part:
                              - 3 -


          14. In summary, Mr. Chisum lacks the capacity to bring
     the instant suit directly on behalf of the trust because he
     is not the trustee. Additionally, Mr. Chisum lacks the
     capacity to represent the trustee or any other person in
     this proceeding because he is not an attorney and is not
     otherwise admitted to practice before this Court. * * *

          15. Since the petition in this case was not brought by
     a party with proper capacity as required by the Tax Court
     Rules of Practice and Procedure, this case should be dis-
     missed for lack of jurisdiction.

     Petitioner filed an objection to respondent’s motion in

which it asks the Court to deny that motion.   Petitioner’s

objection to respondent’s motion asserts in pertinent part:

          As there is a change in fiduciary simultaneous
     with this * * * Objection and the change in fiduciary
     answers the objection raised by the Respondent in the
     Motion to Dismiss, this Court cannot dismiss as set
     forth in Rule 60(a)(1), Rules of Practice and Proce-
     dure, United States Tax Court. Any further objections
     by the Respondent must be done either by an answer to
     the Petition or by other motions as set forth in Rule
     36, Rules of Practice and Procedure, United States Tax
     Court.

     The Court had the document submitted by petitioner that

purported to be a change in fiduciary filed as petitioner’s

“Motion to Substitute Party and to Change Caption”.   Petitioner’s

motion alleges in pertinent part:

          Notice is hereby given that John P. Wilde has been
     appointed as Co-Trustee of Bantam Domestic Trust along
     with Jimmy C. Chisum * * * and Prudent Man Trustee Co.
     has resigned * * *. John P. Wilde will be proceeding
     in his capacity as a Co-Trustee of an Expressed [sic]
     Trust. * * *

     Attached to petitioner’s motion are two documents, one of

which is entitled “APPOINTMENT OF SUCCESSOR TRUSTEE” and the
                               - 4 -


second of which is entitled “MINUTE OF TRUSTEE RESIGNATION”.   The

document entitled “APPOINTMENT OF SUCCESSOR TRUSTEE” states:

          THE PRUDENT MAN TRUSTEE CO., does hereby appoint J
     C Chisum & John Wilde, as the Successor Trustees for
     BANTAM TRUST.

          The appointment takes effect immediately and asks
     that the Successor waive all time and notice require-
     ments in the appointment and resignation.

          Executed this 21st day of January, in the year of
     Our Lord, 1999.

                         THE PRUDENT MAN TRUSTEE CO.
                              TRUSTEE


                         by:        /s/
                               Donna Chisum, F/A for Trustee


         ACCEPTANCE OF APPOINTMENT AS SUCCESSOR TRUSTEE

          THE PRUDENT MAN TRUSTEE CO., does hereby accept
     the appointment of Successor Trustees and the resigna-
     tion of J C Chisum & John Wilde. The above resignation
     and waiver of time is accepted, and with the accepting
     of SUCCESSOR TRUSTEES, J C Chisum & John Wilde, assume
     the duties and responsibilities as TRUSTEE for BANTAM
     TRUST.

          Executed this 21st day of January, in the year of
     Our Lord, 1999.


                               J C Chisum
                               TRUSTEE


                         by:        /s/
                               J C Chisum, Trustee


                               John Wilde
                              - 5 -


                        by:        /s/
                              John Wilde, Trustee

    The document entitled “MINUTE OF TRUSTEE RESIGNATION”

states:

         THE PRUDENT MAN TRUSTEE CO., does hereby resign
    the position as Trustee for BANTAM TRUST. By special
    arrangement with the Successors, J. C. CHISUM & JOHN
    WILDE, all the time clauses in this act are waived.
    The resignation is immediate, final and irrevocable.
         This resignation takes effect immediately upon the
    signing and endorsement by the Successor Trustee.
         This is intended to release THE PRUDENT MAN
    TRUSTEE CO., from all responsibility associated with
    the Trust.

         Executed this 21st day of January, in the year of
    Our Lord, 1999.

                        THE PRUDENT MAN TRUSTEE CO.
                             TRUSTEE


                        by:        /s/
                              Donna Chisum, F/A for Trustee


         Ratified, Accepted, Acknowledged this 21st day of
    January, in the year of Our Lord, 1999.


                              J C Chisum


                        by:        /s/
                              J C Chisum, Trustee


                              John Wilde


                        by:        /s/
                               - 6 -


     Respondent filed an objection to petitioner’s motion (re-

spondent’s objection).   That objection asserts in pertinent part:

          4. In response to respondent’s Motion to Dismiss
     for Lack of Jurisdiction, petitioner provided to this
     Court copies of documents alleging that Prudent Man
     Trustee Co. was removed as trustee and that Jimmy C.
     Chisum and John P. Wilde have been appointed successor
     trustees of the petitioner trust.

           5. There is absolutely no evidence from which the
     Court can adduce that the documents referred to in
     paragraph 4., above, create a legal assignment of
     either Mr. Chisum and/or Mr. Wilde as successor trust-
     ees. The documents petitioner submitted appear to be
     self-serving and created solely in response to respon-
     dent’s original Motion to Dismiss for Lack of Jurisdic-
     tion.

          6. Petitioner has provided no evidence that said
     assignments are valid or authorized under the terms of
     the trust indenture (assuming one exists).

          7. If the initial trustee or any successor trust-
     ees thereafter were, in fact, an entity called Prudent
     Man Trustee Co., petitioner should be required to
     produce credible evidence establishing the legal exis-
     tence and validity of that entity.

          8. Without the evidence described above in para-
     graph 7., petitioner has failed to demonstrate that
     either Mr. Chisum and/or Mr. Wilde were legally
     appointed as subsequent trustees authorized to act on
     behalf of the trusts [sic] and bring the instant case
     before this Court. See T.C. Rule 60(c).

          9. The capacity of Mr. Chisum and/or Mr. Wilde to
     bring the instant suit in this Court has not been
     established.

     The Court held a hearing on respondent’s motion and peti-

tioner’s motion (hearing), at which Mr. Chisum appeared on behalf
                               - 7 -


of petitioner.1   At that hearing, respondent introduced into the

record a document signed by the Secretary of State of Nebraska.2

That document stated in pertinent part:

     I, Scott Moore, Secretary of State of Nebraska do
     hereby certify that after a thorough search of all
     records, I do not find a record of a corporation by the
     name

                      PRUDENT MAN TRUSTEE CO.

     ever having filed Articles of Incorporation or issued a
     Certificate of Authority to transact business as a
     foreign corporation in the state of Nebraska.

                            Discussion

     Rule 603 provides in pertinent part:

          (a) Petitioner: (1) Deficiency or Liability
     Actions: A case shall be brought by and in the name of
     the person against whom the Commissioner determined the
     deficiency (in the case of a notice of deficiency)
     * * * or by and with the full descriptive name of the
     fiduciary entitled to institute a case on behalf of
     such person. See Rule 23(a)(1). A case timely brought
     shall not be dismissed on the ground that it is not
     properly brought on behalf of a party until a reason-
     able time has been allowed after objection for ratifi-
     cation by such party of the bringing of the case; and


     1
      At the hearing, the Court informed Mr. Chisum that its
allowing him to appear at the hearing as the alleged trustee of
petitioner did not mean that the Court agreed that he in fact was
a duly appointed and authorized trustee of petitioner.
     2
      Presumably, respondent proffered the document in question
at the hearing on respondent’s motion and petitioner’s motion
because one of the addresses to which respondent sent the notice
issued to petitioner was in Nebraska.
     3
      All Rule references are to the Tax Court Rules of Practice
and Procedure.
                              - 8 -

     such ratification shall have the same effect as if the
     case had been properly brought by such party. * * *

         *      *       *       *       *         *      *

          (c) Capacity: * * * The capacity of a fiduciary
     or other representative to litigate in the Court shall
     be determined in accordance with the law of the juris-
     diction from which such person's authority is derived.

     The record is unclear as to whether petitioner was organized

as a trust under the laws of Arizona or some other State, al-

though the parties do not dispute that petitioner was carrying on

business during its taxable year 1994 in the State of Arizona.

At the hearing, Mr. Chisum asserted that the administration of

the trust is governed by the laws of the State of Arizona and

that the “sole jurisdiction or exclusive jurisdiction in

determining the validity of the contract for trust and determin-

ing the validity of the trustee party, * * * [is] in Superior

Court of State of Arizona.”

     Assuming arguendo, as petitioner claims, that it is a trust,

the administration of which is subject to the laws of the State

of Arizona, under Arizona law, see Rule 60(c), a trustee has the

power to commence litigation on behalf of a trust.4   See Ariz.

Rev. Stat. Ann. sec. 14-7233.C.25. (West 1995).    In the instant

     4
      Assuming arguendo, as respondent claims upon information
and belief, that petitioner is a trust, the administration of
which is subject to the laws of the State of Indiana, under
Indiana law, see Rule 60(c), a trustee has the power to commence
litigation on behalf of a trust. See Ind. Code Ann. sec. 30-4-3-
3(a)(11) (Michie 1989).
                               - 9 -

case, petitioner has the burden of proving that this Court has

jurisdiction, see Fehrs v. Commissioner, 65 T.C. 346, 348 (1975);

National Comm. to Secure Justice in the Rosenberg Case v. Commis-

sioner, 27 T.C. 837, 839 (1957), by establishing affirmatively

all facts giving rise to our jurisdiction, see Wheeler's

Peachtree Pharmacy, Inc. v. Commissioner, 35 T.C. 177, 180

(1960); Consolidated Cos., Inc. v. Commissioner, 15 B.T.A. 645,

651 (1929).   In order to meet that burden, petitioner must

provide evidence establishing that Mr. Wilde and Mr. Chisum have

authority to act on its behalf.5   See National Comm. to Secure

Justice in the Rosenberg Case v. Commissioner, supra at 839-840;

Coca-Cola Bottling Co. v. Commissioner, 22 B.T.A. 686, 700

(1931).   We reject petitioner’s position that the validity of the

purported appointment of Mr. Wilde and Mr. Chisum as trustees of

petitioner falls within the exclusive jurisdiction of the Supe-

rior Court of the State of Arizona.

     5
      Petitioner no longer contends that Mr. Chisum is authorized
to act on its behalf in this proceeding as the agent of Prudent
Man Trustee Co., and we conclude that it has abandoned any such
argument. Even if it had not abandoned such an argument, on the
record before us, we find that petitioner has not shown that Mr.
Chisum was properly employed by the trustee of petitioner in
accordance with the laws of either the State of Arizona, see
Ariz. Rev. Stat. Ann. sec. 14-7233.C.24. (West 1995), or the
State of Indiana, see Ind. Code Ann. sec. 30-4-3-3(a)(16) (Michie
1989). We further find that, unless Mr. Chisum is a duly ap-
pointed and authorized trustee of petitioner, Mr. Chisum is not
authorized to represent or act in this proceeding on behalf of
either petitioner or the trustee of petitioner. See Rules 60,
200.
                             - 10 -

     We are not persuaded by the document relating to petitioner

entitled “APPOINTMENT OF SUCCESSOR TRUSTEE” and “MINUTE OF

TRUSTEE RESIGNATION” that Mr. Wilde and Mr. Chisum are duly

appointed and authorized trustees of petitioner.    On the record

before us, we find that petitioner has failed to establish that

Mr. Wilde and Mr. Chisum are authorized to act on its behalf.6

     To reflect the foregoing,

                                      An order denying petitioner’s

                                 motion and an order of dismissal

                                 for lack of jurisdiction granting

                                 respondent’s motion will be

                                 entered.




     6
      We have considered all of the contentions and arguments of
petitioner that are not discussed herein, and we find them to be
without merit and/or irrelevant.
