                        T.C. Memo. 2000-274




                      UNITED STATES TAX COURT



                    BHC TRUST, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 16062-99.                     Filed August 29, 2000.



     Cheryl R. Frank and Gerald W. Kelly, for petitioner.1

     Mary Ann Waters, for respondent.



                        MEMORANDUM OPINION


     LARO, Judge:   Respondent moves the Court to dismiss this

case for lack of jurisdiction, arguing that the petition was not

filed with the Court by a proper party as required by Rule


     1
       Ms. Frank and Mr. Kelly entered their appearance on July
17, 2000. Petitioner’s petition was filed with the Court by
petitioner’s managing director, David Jablonski (Mr. Jablonski).
                               - 2 -


60(a).2   The petition was filed with the Court in the name of

petitioner by Mr. Jablonski, in his stated capacity as

petitioner’s managing director.   Petitioner is purportedly an

irrevocable trust, the settlor of which is Robert Buckley.

Petitioner petitioned the Court to redetermine respondent’s

determination of deficiencies of $1,254,755 and $1,168,330 in its

Federal income tax for 1995 and 1996, respectively, accuracy-

related penalties under section 6662(a) of $250,951 and $233,666,

respectively, and a $250,951 addition to tax for 1995 under

section 6651(a).

     On June 27, 2000, we ordered petitioner to respond to

respondent’s motion by July 11, 2000, setting forth in its

response its position as to the motion and attaching any

pertinent documents in support of its position.   We ordered

petitioner to list in its response the name of its trustee and a

list of its assets and liabilities as of the date of the

response.   We ordered petitioner to attach to its response a copy

of the trust instrument(s) under which it has operated on or

after the date of the petition.   We admonished petitioner that we

might dismiss its case if it did not comply fully with our order.




     2
       Rule references are to the Tax Court Rules of Practice and
Procedure. Section references are to the Internal Revenue Code
in effect for the years in issue.
                                - 3 -


     On July 17, 2000, petitioner filed its response with the

Court.   The response attached a copy of a trust instrument for

petitioner dated April 5, 1996, but did not list either the name

of petitioner’s trustee or petitioner’s assets or liabilities as

of the date of the response.    Nor did the response set forth

petitioner’s position as to respondent’s motion.    Petitioner

prayed in the response that the Court give it until July 25,

2000, to comply with our Order.    We granted petitioner’s prayer,

ordering it to file with the Court a supplement to its response

by July 26, 2000.3   Petitioner never filed such a supplement with

the Court, and it never requested a further extension of time in

order to do so.   Respondent filed with the Court on August 2,

2000, a reply to petitioner’s response.

     We must decide whether to grant respondent’s motion.      We are

a legislatively created (Article I) Court, and, consequently, our

jurisdiction flows directly from Congress.    See Freytag v.

Commissioner, 501 U.S. 868, 870 (1991); Neilson v. Commissioner,

94 T.C. 1, 9 (1990); Naftel v. Commissioner, 85 T.C. 527, 529

(1985); see also sec. 7442.    Jurisdiction must be shown

affirmatively, and petitioner, as the party desiring to invoke

our jurisdiction, must establish affirmatively all facts giving



     3
       In addition to our regular service of process, we
telephoned petitioner’s counsel on July 24, 2000, to inform them
of this extension.
                                - 4 -


rise to our jurisdiction.    See 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, Etc. v. Commissioner, 27 T.C. 837, 839 (1957).

Petitioner must establish that:    (1) Respondent issued to it a

valid notice of deficiency, and (2) someone authorized to act on

its behalf filed with the Court a timely petition.    See Rule

13(a), (c); Monge v. Commissioner, 93 T.C. 22, 27 (1989); Fehrs

v. Commissioner, supra at 348; National Comm. to Secure Justice,

Etc. v. Commissioner, supra at 839.     See generally sec. 6213(a)

(a taxpayer such as petitioner must file with the Court a

petition for redetermination within 90 days from the date of the

notice of deficiency).

     The fact that respondent issued to petitioner a valid notice

of deficiency is not in dispute.    We focus on the second

requirement; i.e., a timely petition.    Respondent issued the

notice of deficiency to petitioner on July 15, 1999.    Thus, to

invoke our jurisdiction, petitioner had to cause a proper

petition to be filed with the Court on or before October 13,

1999.   See sec. 6213(a).   It is not enough that petitioner may

have simply caused to be forwarded to this Court within the

statutory period a petition for filing.    In regard to a taxpayer

such as petitioner, a proper filing requires that the taxpayer

tendering (or causing to be tendered through an agent) a petition
                               - 5 -


to the Court for filing have the capacity to litigate in this

Court.   See Rule 60(c); see also David Dung Le, M.D., Inc.       v.

Commissioner, 114 T.C. 268 (2000); Renaissance Enters. Trust v.

Commissioner, T.C. Memo. 2000-226.

     Whether petitioner has the capacity to litigate in this

Court is determined by applicable State law, which, in this case,

appears to be the law of Virginia.4    See Rule 60(c).   On the

basis of our review of that law and of the trust instrument, we

are unable to conclude that Mr. Jablonski, the only signatory on

the petition, had the requisite capacity to petition this Court

on petitioner’s behalf.   Accord Mendenhall v. Douglas L. Cooper,

Inc., 387 S.E.2d 468 (Va. 1990); Raney v. Four Thirty Seven Land

Co., 357 S.E.2d 733, 736 (Va. 1987); Fisher v. Dickenson, 4 S.E.

737 (Va. 1888); cf. Walt Robbins, Inc. v. Damon Corp., 348 S.E.2d

223, 226 (Va. 1986) (the trustee of an antecedent deed of trust

is a necessary party in a suit to enforce a mechanic's lien).

Petitioner is purportedly an irrevocable trust, and Mr. Jablonski

is not petitioner’s trustee;5 Mr. Jablonski is listed on the



     4
       In addition to the fact that petitioner’s mailing address
is in Alexandria, Virginia, the trust instrument was executed in
that city.
     5
       The record does contain a letter dated Mar. 24, 2000, from
Mr. Jablonski to respondent’s counsel, that Mr. Jablonski signed
as “Trusttee” (sic). However, the trust instrument does not name
Mr. Jablonski as trustee. The record as a whole does not support
a finding that Mr. Jablonski is petitioner’s trustee.
                               - 6 -


petition, but not in the trust instrument, as petitioner’s so-

called managing director.   The trust instrument does not define

the term “managing director”, and it does not set forth the

powers, duties, or responsibilities of a person who holds that

title.6   Nor is petitioner’s trustee a party to this proceeding.

According to the trust instrument, petitioner’s trustee is Jerald

Tobin, and the petition that was filed with the Court by Mr.

Jablonski makes no reference to Mr. Tobin.

     Petitioner has left us unpersuaded that we have jurisdiction

over its case.   Thus, we shall grant respondent’s motion to

dismiss this case for lack of jurisdiction.7   See AL Trust v.

Commissioner, T.C. Memo. 2000-276; YMO Trust v. Commissioner,


     6
       By contrast, the trust instrument provides explicitly that
“THE TRUSTEES shall hold all property of the Trust Organization
as joint tenants in fee simple and shall comprise the Board of
Trustees for conducting the affairs of the Trust Organization.”
The trust instrument provides further that “THE TRUSTEES shall
hold office and exercise collectively the control of the Trust
Organization property and affairs. All major actions and
decisions * * * on the part of the Trust Organization shall be
made by the Trustees acting unanimously”.

     We also note that the record contains a document dated Apr.
28, 1994, entitled “MINUTES OF THE INITIAL TRUSTEE MEETING OF BHC
TRUST.” This document provides that the managing director is
authorized to “conduct day to day routine business”. This
document provides further that the managing director must receive
board approval for any important matter; e.g., a legal
determination.
     7
       Petitioner has also failed to persuade us that it actually
existed on the date of the petition. We lack jurisdiction when a
petitioning trust is a nonexisting entity. See Patz v.
Commissioner, 69 T.C. 497, 501 (1977).
                                 - 7 -


T.C. Memo. 2000-275; Malvern Hills Trust v. Commissioner, T.C.

Memo. 2000-273; PM Trust v. Commissioner, T.C. Memo. 2000-272;8

cf. Renaissance Enters. Trust v. Commissioner, supra.

     To reflect the foregoing,

                                              An appropriate order of

                                         dismissal for lack of

                                         jurisdiction will be entered.




     8
       We have decided the same issue adverse to the trusts in
the cases of Al Trust, Malvern Hills Trust, PM Trust, and YMO
Trust. Mr. Jablonski also petitioned the Court on behalf of each
of those trusts, and the records in those cases were virtually
identical to the record at hand.
