                         T.C. Memo. 2000-226



                       UNITED STATES TAX COURT



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



     Docket No. 17868-99.                        Filed July 28, 2000.


     John P. Wilde, for petitioners.

     John W. Duncan, for respondent.



                         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 years in issue, and
                                - 2 -

all Rule references are to the Tax Court Rules of Practice and

Procedure.

Background

     Petitioners1 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 Stein & Stein as the trustee, 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

Stein & Stein 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




     1
        References to “petitioners” are to Renaissance
Enterprises Trust and Educational Enterprises Trust.
                                - 3 -

that pursuant to Rule 60, Mr. Wilde is not the proper party to

bring this action.

     On March 3, 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 documents both entitled

“Minute–-Stern & Stein L.L.C.” (the minutes).2       The minutes are

identical and 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.

Cliff Jennewin and Richard Scarborough signed the minutes on

behalf of Stern & Stein.   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


     2
        We believe that the entities referred to as “Stein &
Stein” and “Stern & Stein” are one in the same.
                               - 4 -

     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 (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
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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.   At the hearing, when asked why he

had not produced the documents, Mr. Wilde remarked:   “Why should

we offer [respondent] the benefit of our volunteering [the trust

documents] when respondent and respondent’s counsel repeatedly
                               - 6 -

berate us.”   Petitioners submitted only the minutes as evidence.3

     Without the trust documents and/or other evidence, we are

not persuaded that Mr. Wilde has the required capacity to file a

petition on behalf of petitioners in this Court.    Petitioners

have failed to establish that the minutes submitted are what they

purport to be (i.e., the resignation of Stein & Stein as trustee

and the appointment of Mr. Wilde as successor trustee).    We have

no way to determine whether:   (1) Stein & Stein was the original

trustee or was, at any time, a trustee; (2) Stein & Stein 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.

     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.4    We therefore shall grant


     3
        At the hearing, petitioners attempted to introduce two
incomplete documents regarding the trust which were not accepted
into evidence.
     4
        We note that Mr. Wilde is no stranger to this Court.
Recently, he 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 the 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
                                                   (continued...)
                                 - 7 -

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.




     4
      (...continued)
(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).
