                        T.C. Memo. 2003-59



                      UNITED STATES TAX COURT



SUNSHINE RESIDENTIAL TRUST, ROBERT HOGUE, TRUSTEE, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 2213-02.              Filed March 3, 2003.


     Robert Hogue, pro se.

     Jeremy L. McPherson, for respondent.


                        MEMORANDUM OPINION


     DAWSON, Judge:   This case was assigned to Special Trial

Judge Robert N. Armen, Jr., pursuant to the provisions of section

7443A(b)(5) and Rules 180, 181, and 183.1    The Court agrees with

and adopts the opinion of the Special Trial Judge, which is set

forth below.


     1
        Unless otherwise indicated, all section references are to
the Internal Revenue Code, as amended, and all Rule references
are to the Tax Court Rules of Practice and Procedure.
                                   - 2 -

                  OPINION OF THE SPECIAL TRIAL JUDGE

     ARMEN, Special Trial Judge:       This matter is before the Court

on respondent’s motion to dismiss for lack of jurisdiction.2

Respondent maintains that the petition was not filed by a trustee

authorized to bring suit on behalf of Sunshine Residential Trust

(Sunshine Residential).3    As discussed in detail below, we shall

grant respondent’s motion and dismiss this case for lack of

jurisdiction.

Background

     A.     Notice of Deficiency

     Respondent issued a notice of deficiency to Sunshine

Residential determining a deficiency in, an addition to, and a

penalty on its Federal income tax as follows:

                                                 Accuracy-Related
                            Addition To Tax          Penalty
     Year      Deficiency   Sec. 6651(a)(1)        Sec. 6662(a)

     1997       $91,583        $18,317               $18,317




     2
        This case was consolidated for hearing with three related
cases in which Robert Hogue also filed petitions purportedly as
“trustee” on behalf of various so-called trusts. See Residential
Mgmt. Servs. Trust v. Commissioner, T.C. Memo. 2003-56; Rancho
Residential Servs. Trust v. Commissioner, T.C. Memo. 2003-57;
Home Health Servs. Trust v. Commissioner, T.C. Memo. 2003-58.
     3
        Use of the terms “trust” and “trustee” (and their
derivatives) is intended for narrative convenience only. Thus,
no inference should be drawn from our use of such terms regarding
any legal status or relationship.
                               - 3 -

The deficiency in income tax is based on the disallowance of

deductions claimed by Sunshine Residential on Schedule C, Profit

or Loss from Business.   In this regard, respondent determined

that the deductions:

     are disallowed because you failed to establish the
     amount, if any, that was paid during the taxable year
     for ordinary and necessary business expenses, and you
     failed to establish the cost or other basis of the
     property claimed to have been used in business.

     B.   Petition

     The Court subsequently received and filed a petition for

redetermination challenging the notice of deficiency.4   The

petition was signed by Robert Hogue as Sunshine Residential’s

purported “trustee”.

     Paragraph 4 of the petition, which sets forth the bases on

which the notice of deficiency is challenged, alleges as follows:

     (1) The Statutory Notice of Deficiency was issued to
     petitioner claiming petitioner had unreported income.
     Petitioner denies having any unreported income. (2)
     Attached to the Notice of Deficiency, IRS Form 4549-A,
     income tax examination changes, line 9 states, “Total
     Corrected Tax Liability.” Petitioner denies having a
     tax liability. (3) Respondent has failed to provide
     the petitioners [sic] with the USC Title 26 taxing
     statute that applies. (4) Respondent has failed to
     provide the petitioners [sic] with certified assessment
     information as per Internal Revenue Regulation
     301.6203-1. (5) Respondent has failed to identify the
     individual who will certify to the tax adjustments the




     4
        Sunshine Residential’s principal place of business was in
California at the time that the petition was filed with the
Court.
                                - 4 -

     determination was based on. (6) Petitioner claims, the
     Notice of Deficiency, the claimed tax liability, and
     the claimed unreported income, are all based on
     unfounded and hearsay evidence[;] no examination of
     books and records has been done so we are presuming
     this is a naked assessment. (7) There can be no
     meaningful administrative hearing until respondent
     provides petitioner with certified evidence to support
     the Notice of Deficiency and the claimed tax liability.

     C.   Respondent’s Motion

     Respondent filed a motion to dismiss for lack of

jurisdiction.   In the motion, respondent asserts that this case

should be dismissed for lack of jurisdiction “on the ground that

the petition was not filed by a trustee authorized to bring suit

on behalf of the trust”.

     Upon the filing of respondent’s motion to dismiss, the Court

issued an order directing Sunshine Residential to file an

objection, if any, to respondent’s motion, taking into account

Rule 60, and to attach to the objection a copy of the trust

instrument or other documentation showing that the petition was

filed by a fiduciary legally entitled to institute a case on

behalf of Sunshine Residential.   The Court subsequently extended

the time within which the objection was to be filed.

     D.   Robert Hogue’s Objection

     Ultimately, the Court received an objection, which was

signed by Robert Hogue, to respondent’s motion to dismiss.

Paragraph 5 of the objection states:
                              - 5 -

     ROBERT HOGUE presented a Trust instrument for the court
     which is a Contractual Contract Trust based on common
     law & the United States Constitution, Article One,
     Section 10., MR. HOGUE also presented notarized
     documentation to the court to show his acceptance of
     Trusteeship. As well as further documentation such as
     form 56, Fiduciary Signature card showing Robert Hogue
     as wet signature on bank account. At best this site is
     frivolous and without merit. The court is trying to
     mislead the petitioner in this court action. ROBERT
     HOGUE is the only person who can represent the trust.
     His description as Trustee for Sunshine Residential
     Trust is well established in his everyday work as
     Trustee.

     Attached to the objection are copies of, inter alia, a

purported trust instrument dated August 15, 1996, and a document

entitled “Trustee Resignation/Appointment of Successor-Trustee”

dated July 15, 1997 (appointment document).5

     The purported trust instrument provides, in pertinent part,

as follows:




     5
        The same purported trust instrument and appointment
document were both submitted to the Court by Robert Hogue in
Sunshine Trust v. Commissioner, docket No. 9117-00, involving the
1996 tax year, which was dismissed on the ground that Robert
Hogue was not a proper person authorized to petition the Court on
behalf of the trust. Likewise, with the exception of the name of
the so-called trust, the appointment document is identical to the
appointment document submitted to the Court by Robert Hogue in
numerous cases before this Court that were dismissed on the
ground that Robert Hogue was not a proper person authorized to
petition the Court on behalf of the “trust”. See Rancho
Residential Facility Trust v. Commissioner, docket No. 9120-00;
Residential Mgmt. Servs. Trust v. Commissioner, docket No. 9119-
00; Home Health Servs. Trust v. Commissioner, docket No. 9118-00;
Sunshine Trust v. Commissioner, supra; Residential Mgmt. Servs.
Trust v. Commissioner, T.C. Memo. 2001-297; cases cited supra
n.2.
                               - 6 -

                DECLARATION OF IRREVOCABLE TRUST

     This Declaration of Irrevocable Trust is created this
     15TH DAY OF August 1996, between CONTRACT ADMINISTRATORS TRUST, of Wash
SETTLOR and AMERICAN FINANCIAL SERVICES, Washington, D.C., with
mailing address of Washington D.C., Jeffery Williams and Douglas
Carpa Officers [sic], hereinafter called the TRUSTEES, who are
legal entities holding full title, not as individuals, hilt [sic]
collectively as the Board under the name of SUNSHINE RESIDENTIAL
FACILITY[6] * * *.

         *      *        *       *         *       *       *
                               EIGHTH

     * * * A Successor-Trustee may be appointed by the
     current Trustee or Trustees, a court of competent
     jurisdiction, or by consensus with the and [sic]
     Beneficiaries if the First Trustee resigns with 30 days
     notice.

                              NINTH
     The Trustee, by joining in the execution of this
     agreement, hereby signifies acceptance of this trust.

         *      *        *       *         *       *       *

     IN WITNESS WHEREOF, the parties hereto have executed
     this agreement the day and year first above written.

                 /s/                             /s/
     CONTRACT ADMINISTRATORS         AMERICAN FINANCIAL
     TRUST, SETTLOR, Enrique         SERVICES TRUST,
     Almodovar                       FIRST TRUSTEE, Jeffery
                                     Williams, Trust Officer

     [Emphasis added.]

Although the instrument identifies a Jeffery Williams and a

Douglas Carpa as the “trustees”, only Jeffery Williams

purportedly executed the document accepting his appointment on



     6
        The record indicates that Sunshine Residential Facility,
Sunshine Residential Facility Trust, and Sunshine Residential
Trust are one and the same.
                               - 7 -

behalf of American Financial Services as a trustee for Sunshine

Residential.   In contrast, there is nothing in the document (or

otherwise in the record) demonstrating that Douglas Carpa

purported to accept his appointment on behalf of American

Financial Services as a trustee for Sunshine Residential.

     The purported resignation document provides, in pertinent

part, as follows:

     TO ALL PERSONS, be it known that Douglas J. Carpa,
     Trust Officer for American Common Trust,[7] tenders his
     resignation on behalf of American Common Trust as
     Trustee for Sunshine Residential Facility Trust. My
     final act as trustee is to appoint the Successor-
     Trustee(s). He shall be Mr. Bob Hogue.

On July 15, 1997, Douglas J. Carpa purportedly executed this

instrument in his capacity as “Resigning Trustee for American

Common Trust”.

     E.   Hearing on Respondent’s Motion

     This matter was called for hearing at the Court’s trial

session in San Francisco, California.   Counsel for respondent

appeared at the hearing and offered argument and evidence in

support of respondent’s motion to dismiss.

     Robert Hogue appeared pro se, purportedly on behalf of

Sunshine Residential.   The only evidence he offered was his naked

assertion that he is entitled to appear on behalf of Sunshine



     7
        American Common Trust, whose “home situs” is reputedly in
the Republic of Panama, is not otherwise identified in the
record.
                               - 8 -

Residential because he was appointed successor trustee by Douglas

Carpa, the purported resigning “trustee”, on July 15, 1997.

Discussion

     According to respondent, Sunshine Residential failed to show

that Robert Hogue is its duly appointed trustee.   Respondent

asserts that as a result, no valid petition has been filed and

the Court must dismiss this case for lack of jurisdiction.    We

agree.

     It is well established that the taxpayer has the burden of

affirmatively establishing all facts giving rise to the Court’s

jurisdiction.   See Patz Trust 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); Natl. Comm. To Secure Justice v. Commissioner, 27 T.C.

837, 838-839 (1957).   Furthermore, unless the petition is filed

by the taxpayer, or by someone lawfully authorized to act on the

taxpayer’s behalf, we are without jurisdiction.    See Fehrs v.

Commissioner, supra at 348.

     Rule 60(a) requires that a case be brought “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 23(a)(1).   Rule 60(c) states that the capacity of a

fiduciary or other representative to litigate in the Court “shall
                              - 9 -

be determined in accordance with the law of the jurisdiction from

which such person's authority is derived.”   However, Robert Hogue

failed to provide the Court with documentary evidence necessary

to support his contention that he is vested with authority to

institute this action on behalf of Sunshine Residential under the

law of any relevant jurisdiction.

     As previously discussed, Sunshine Residential presented the

Court with a purported trust instrument, dated August 15, 1996.

The preamble of the purported trust instrument identifies a

Jeffery Williams and a Douglas Carpa as “trustees”.    Further,

paragraph Ninth of the purported trust instrument explicitly

requires the trustees to execute the purported trust instrument

accepting their appointment on behalf of American Financial

Services as trustees for Sunshine Residential.    However, only

Jeffery Williams executed the purported trust instrument

accepting his appointment on behalf of American Financial

Services as a trustee for Sunshine Residential.    In contrast,

Douglas Carpa did not execute the purported trust instrument

accepting his appointment on behalf of American Financial

Services as a trustee for Sunshine Residential.    Therefore,

Douglas Carpa is not a trustee for Sunshine Residential.

Accordingly, Douglas Carpa’s purported appointment, in his

capacity as the “Resigning Trustee for American Common Trust”, of

Robert Hogue as successor trustee for Sunshine Residential must
                               - 10 -

fail.    See Bella Vista Chiropractic Trust v. Commissioner, T.C.

Memo. 2003-8.

     In the absence of any persuasive basis for concluding that

Robert Hogue was duly appointed trustee for Sunshine Residential,

we shall dismiss this case for lack of jurisdiction consistent

with respondent’s motion.8

     All of the arguments and contentions that have not been

analyzed herein have been considered but do not require any

further discussion.

     In order to give effect to the foregoing,

                                    An order of dismissal for

                               lack of jurisdiction will be

                               entered.




     8
        Robert Hogue is no stranger to this Court and has filed
numerous petitions with the Court on behalf of various so-called
trusts. As is the case here, those petitions were dismissed on
the ground that they were not filed by a proper party. See
Residential Mgmt. Servs. Trust v. Commissioner, T.C. Memo. 2003-
56; Rancho Residential Servs. Trust v. Commissioner, T.C. Memo.
2003-57; Home Health Servs. Trust v. Commissioner, T.C. Memo.
2003-58 (and cases cited therein at n.16).
