                        T.C. Memo. 2000-390



                      UNITED STATES TAX COURT



             UNIVERSAL TRUST 06-15-90, FOUR WS TT01,
                TRUSTEE, Petitioner v. COMMISSIONER
                  OF INTERNAL REVENUE, Respondent



     Docket No. 3885-98.            Filed December 27, 2000.



     Jimmy C. Chisum, for petitioner.1

     Nicholas J. Richards and Miles D. Friedman, for respondent.


                        MEMORANDUM OPINION


     BEGHE, Judge:   This case is before the Court on the parties’

cross-motions to dismiss for lack of jurisdiction.   Petitioner

asserts we must dismiss because respondent failed to determine a

     1
       As explained in the text, respondent challenges Mr.
Chisum’s capacity to conduct litigation on behalf of petitioner
in any capacity. Our tentative description of Mr. Chisum as
appearing for petitioner, and our ascribing of Mr. Chisum’s
motion and arguments to petitioner, are for convenience only.
                               - 2 -


deficiency in petitioner’s tax, as required by section 62122 and

Scar v. Commissioner, 814 F.2d 1363 (9th Cir. 1987), revg. 81

T.C. 855 (1983).   Respondent asserts we must dismiss because

Jimmy C. Chisum (Mr. Chisum), the person who signed the petition,

has not established his capacity to act on behalf of petitioner,

as required by Rule 60.3

     We will deny petitioner’s motion and grant respondent’s

motion for the reasons set forth below.




     2
       All section references are to the Internal Revenue Code in
effect for 1993, and all Rule references are to the Tax Court
Rules of Practice and Procedure, unless otherwise specified.
     3
       We note that Mr. Chisum and a myriad of purported “trusts”
with which he has claimed to be connected are well known to this
Court. We have dismissed several cases that Mr. Chisum attempted
to bring in this Court (including a case concerning petitioner’s
income taxes for 1994 and 1995) on the ground asserted by
respondent in the case at hand. See Universal Trust 06-15-90 v.
Commissioner, docket No. 18438-99; Banana Moon Trust v.
Commissioner, T.C. Memo. 2000-73; Jeff Burger Prods., LLC v.
Commissioner, T.C. Memo. 2000-72 (dismissed for lack of
jurisdiction because Mr. Chisum, who claimed to be “trustee” of
“trust” acting as taxpayer’s tax matters partner, did not have
capacity to act on behalf of that “trust”); Bantam Domestic Trust
v. Commissioner, T.C. Memo. 2000-63; Photo Art Mktg. Trust v.
Commissioner, T.C. Memo. 2000-57, see also Lipari v.
Commissioner, T.C. Memo. 2000-280 (sec. 6673 penalty imposed on
taxpayers who claimed they were unable to obtain records from
Mr. Chisum, “trustee” of their “trust”); George v. Commissioner,
T.C. Memo. 1999-381 (“trust” of which Mr. Chisum was “trustee”
was a sham, and payments received by that “trust” were income of
osteopathic physician who performed services that generated the
income).
                                - 3 -


Procedural Setting

     The case at hand was formerly consolidated with Johnston v.

Commissioner, T.C. Memo. 2000-315, and Ghavami v. Commissioner,

docket No. 3692-99.    The case was severed from those cases on

respondent’s motion when respondent’s motion to dismiss was

filed.

     The common substantive question in the three cases is

whether $104,786 deposited in petitioner’s bank account during

1993 should be included in the gross income of petitioner, Mr.

Johnston, or Ms. Ghavami.    The statutory notices sent to

petitioner, Mr. Johnston, and Ms. Ghavami were “whipsaw” notices

designed to protect respondent’s ability to collect the proper

tax, whether petitioner, Mr. Johnston, or Ms. Ghavami should be

treated as the earner of the $104,786, and whether or not

petitioner should be recognized as a separate taxable entity.

     We held a hearing on the cross-motions to dismiss the case

at hand on June 19, 20, and 27, 2000.   Mr. Chisum claimed to

represent petitioner at the hearing; he also testified briefly on

petitioner’s behalf.   The Court took the motions to dismiss under

advisement at the end of the hearing, pending the resolution of

Johnston v. Commissioner, supra.

     In Johnston, we found that $103,420 of the $104,786 paid to

petitioner was paid for services performed solely by Mr.
                              - 4 -


Johnston, without petitioner’s involvement.4   Accordingly, we

held that Mr. Johnston was the person who earned that $103,420

and that Mr. Johnston’s attempt to divert his personal service

income to petitioner was an ineffective “assignment of income”,

under the long line of authority beginning with Lucas v. Earl,

281 U.S. 111 (1930).5

Background

     The record consists of a few exhibits and a limited amount

of testimony.



     4
       In Johnston v. Commissioner, T.C. Memo. 2000-315, we also
found that $1,341 of the $104,786 paid to petitioner was paid for
work done by Julia Ghavami (Ms. Ghavami). On July 27, 2000, the
Court entered an agreed decision that Ms. Ghavami has no
deficiency for 1993.
     5
       Our opinion in Johnston v. Commissioner, supra, issued on
Oct. 6, 2000, concerned Mr. Johnston’s income tax for 1993. The
Court has also redetermined Mr. Johnston’s income taxes for 1990-
92 and 1994-95, see Johnston v. Commissioner, docket No. 18619-99
(Johnston II), and acted on respondent’s motion to dismiss for
lack of jurisdiction with respect to the trust herein for 1994-
95, docket No. 18438-99. On Nov. 17, 2000, the Court entered a
decision for the Commissioner in Johnston II, pursuant to a bench
opinion rendered on Oct. 19, 2000. On Nov. 27, 2000, the Court
granted respondent’s motion and entered an order dismissing
docket No. 18438-99.

     In Johnston II, the Court found that World Wide Mortgage
Corp. and other third parties made payments during 1990-92 and
1994-95 for work performed by Mr. Johnston; these payments were
deposited in Universal Trust’s bank account. The Court concluded
in Johnston II that this attempted diversion of Mr. Johnston’s
service income, like the diversion at issue in our earlier
Johnston opinion, was an “assignment of income” that would not be
recognized for Federal income tax purposes.
                                - 5 -


     On June 15, 1990, Donna L. Chisum as “Settlor” and Four WS

TT01 as “First Trustee” executed a document (the original

indenture)6 purporting to create “Universal Trust 06-15-90”

(i.e., petitioner).   The original indenture stated that

petitioner was a “COMMON LAW BUSINESS TRUST ORGANIZATION, also

known as a CONTRACTUAL COMPANY * * * with certain assets to be

administered by the Trustee for capital Unit Holders represented

by Certificates in accordance with the inalienable Common Law

rights afforded to man.”   Notwithstanding this language

purporting to create a trust, the original indenture also stated

that “It is expressly declared that an Unincorporated Business

Organization by Contract is hereby created and not a trust

agreement by gift, or a partnership, or a company, or a

corporation, or a joint venture, or any entity of statutory

nature”.   (Emphasis added.)   The original indenture further

stated that petitioner “shall be originally domiciled in and

shall be interpreted and construed under the Constitution of the

United States and the laws of the State of NEVADA.”

     Other documents also dated June 15, 1990, show that all 100

“capital units” in petitioner that could be issued were issued on

that date to Mr. Johnston and Ms. Ghavami.    These documents state


     6
       We use the term “indenture” for convenience and not to
suggest that petitioner should be recognized as a trust for State
law or Federal income tax purposes.
                               - 6 -


that the capital units were issued in exchange for Mr. Johnston’s

and Ms. Ghavami’s contribution of certain property to petitioner,

including Mr. Johnston’s “knowledge, talent, ability and labor”.

Mr. Johnston and Ms. Ghavami also served as petitioner’s

“Secretary” and “General Manager”; their duties included signing

checks on petitioner’s bank account.

     The record contains a copy of another document, dated

October 1, 1991, which also appears to be an indenture for

petitioner.   Mr. Chisum claims that this document (the revised

indenture) is an amended or restated indenture for petitioner.

The revised indenture and the original indenture appear to be

identical in most respects, except that the revised indenture

provides that petitioner shall be “domiciled in and * * *

interpreted and construed under” the laws of the State of

Delaware rather than Nevada.

Facts Relating Primarily to Petitioner’s Motion To Dismiss

     In December 1994, respondent received a document purporting

to be a Form 1041, U.S. Fiduciary Income Tax Return, for

petitioner for 1993.   This Form 1041 was signed by Mr. Chisum as

“fiduciary or officer representing fiduciary”.   The Form 1041 did

not identify petitioner’s trustee or trustees.   It also did not

supply a taxpayer identification number for petitioner’s
                                 - 7 -


fiduciary or for the entity claimed to be petitioner’s

beneficiary.7

     The Form 1041 stated that petitioner’s 1993 business gross

receipts were $83,075.     It also stated that petitioner was

entitled to deductions for $51,865 of expenses and $31,210 of

income distributions, leaving a claimed taxable income of zero.

The Form 1041 further stated that the distributions were made to

a beneficiary named “Oak Hargor [sic] Finance”, with the

following address:     “P.O. Box 577, Guelth [sic], Ontaria [sic]

Canada N1H 6K9".

     On December 1, 1997, respondent sent the statutory notice to

petitioner.     The notice was addressed as follows:

     Universal Trust 06-15-90
     Care of Four WS TT01 Trustee
     3531 West Glendale Avenue, Unit 347
     Phoenix, AZ 85051-8332

The notice determined that petitioner had $21,711 of unreported

gross receipts.     Taking into account the $83,075 of gross

receipts reported on the Form 1041, the notice to petitioner

determined that petitioner’s actual 1993 gross receipts were

$104,786.   The notice stated that the amount of petitioner’s


     7
       The record also contains a copy of a Form 8800,
Application for Additional Extension of Time to File U.S. Return,
relating to the Form 1041. This Form 8800 was signed by Mr.
Chisum as “T/E Agt.” (presumably, as “trustee’s agent”). Like
the Form 1041, the Form 8800 did not identify petitioner’s
trustee or trustees.
                               - 8 -


gross receipts was determined using the bank deposits method.

The notice also disallowed, for lack of substantiation, the

$51,865 expense and $31,210 distribution deductions claimed on

the Form 1041.   As a result of these adjustments, the notice

determined that there was a $37,312 deficiency in petitioner’s

income tax and that petitioner was liable for a $7,462 accuracy-

related penalty under section 6662(a).

     As previously indicated, see supra p. 4, we have held that

most of the income that is the subject of the three “whipsaw”

notices, including the notice in the case at hand, is properly

taxable to Mr. Johnston, and that all but $25 of the balance was

paid for work done by Ms. Ghavami.     See Johnston v. Commissioner,

T.C. Memo. 2000-315.

Facts Relating Primarily to Respondent’s Motion To Dismiss

     As noted above, the original indenture provided that Four WS

TT01 was petitioner’s first trustee.

     The record contains almost no information about Four WS

TT01.8   Mr. Chisum testified that Four WS TT01 is a trust, and

that Mr. Chisum was (and is) its managing agent and trustee.

However, Mr. Chisum did not offer and the record does not contain

any trust indenture, corporate charter, partnership agreement, or


     8
       In response to the Court’s question at the hearing,
Mr. Chisum testified that the “Four WS” in the name Four WS TT01
stood for the question-phrase “What’s Wrong With White?”
                                - 9 -


other documentary evidence establishing the existence of Four WS

TT01, describing Four WS TT01, or showing who owned or had

authority to act on behalf of Four WS TT01.   Moreover, although

Mr. Chisum signed the original indenture’s signature page, he did

not do so on behalf of Four WS TT01; he signed only as a

“Witness”.9   Indeed, no one signed the original indenture on

behalf of Four WS TT01; the name of that entity is merely

typewritten on the signature page.

     Mr. Chisum claims that Four WS TT01 resigned as petitioner’s

trustee on October 1, 1991, and was replaced on that date by

“Hamilton & Baxter, L.C.” of Florida (Hamilton Florida).    Mr.

Chisum also claims that Hamilton Florida in turn resigned its

trusteeship on May 19, 1993, and was replaced by “Hamilton &

Baxter, L.C.” of Arizona (Hamilton Arizona) as successor trustee.

     The record contains copies of documents dated October 1,

1991, that purport to evidence Hamilton Florida’s acceptance of

its appointment as successor trustee.   It also contains a copy of

a document dated May 19, 1993, that purports to evidence Hamilton

Florida’s resignation and consent to the appointment of Hamilton

Arizona as successor trustee.   However, these documents were



     9
       The record does contain copies of some “minutes” for
petitioner, executed on the same date as the original indenture,
which Mr. Chisum signed over the title “Managing Agent” of Four
WS TT01.
                             - 10 -


purportedly signed on behalf of Hamilton Florida by Mr. L.R.

Mayer, who did not appear at trial to authenticate them.10

     Mr. Chisum also claims that, at some time in 1997, Hamilton

Arizona in turn resigned as petitioner’s trustee and was replaced

by Mr. Chisum personally as successor trustee.   Mr. Chisum

further claims that the documents effecting this resignation and

replacement were lost while respondent was copying them.



     10
       Respondent (but not petitioner) subpoenaed Mr. Mayer to
appear as a witness and to bring any documents in his possession
relating to the creation or administration of petitioner.
Shortly before the hearing, however, Mr. Mayer filed a motion to
quash the subpoena on health-related grounds. Mr. Mayer’s motion
was supported by medical reports that appeared credible. In
addition, Mr. Mayer informed the Court that he had no documents
within the scope of the subpoena and that, if he were compelled
to appear, he would invoke his privilege against self-
incrimination and refuse to testify.

     In February 1998, Mr. Mayer was convicted of conspiracy to
defraud the United States, see 18 U.S.C. sec. 371, by impeding
and defeating the ascertainment and collection of income taxes.
The indictment alleged that Mr. Mayer was a promoter of “domestic
contractual trusts” also known as “Business Trust Organizations”;
it also alleged that as one of the overt acts in furtherance of
the conspiracy Mr. Mayer counseled taxpayers to use the address
“P.O. Box 577, Guelph, Ontario, Canada N1H 6K9" as the mailing
address for the purported sole beneficiary of the contractual
trusts. Mr. Mayer’s conviction was affirmed on appeal (without
published opinion). See United States v. Mayer, 198 F.3d 261
(11th Cir. 1999).

     In the case at hand, the original indenture stated that
petitioner was a “COMMON LAW BUSINESS TRUST ORGANIZATION, also
known as a CONTRACTUAL COMPANY”. In addition, the Form 1041
filed for petitioner for 1993 used the same foreign address for
petitioner’s claimed beneficiary as the address referred to in
Mr. Mayer’s indictment.
                              - 11 -


     On June 20, 2000, Mr. Chisum executed a document purporting

to serve as a “memorial writing” of the replacement of Hamilton

Arizona with Mr. Chisum.   The document refers to Hamilton Arizona

as “Hamilton & Baxter, LLC”, and was signed by Mr. Chisum and

Donna Chisum as the “members” of that LLC.   However, the articles

of organization of Hamilton Arizona state that the organization’s

name is “Hamilton & Baxter, L.C.” (emphasis added), not LLC; the

articles also state that the organization’s “Members and

Management” were Mr. Chisum and “Represent-Tour, L.C.”, not Mr.

Chisum and Donna Chisum.

     The petition was signed by Mr. Chisum on February 27, 1998,

above the title “Managing Agent for Trustee”.   The caption Mr.

Chisum placed on the petition identified the “Petitioner” as

“UNIVERSAL TRUST 06-15-90".   Neither the caption nor the body of

the petition identified petitioner’s trustee.

     Shortly after the petition was filed, the Court on its own

motion changed the caption of the case at hand to the following:

“Universal Trust 06-15-90, Four WS TT01, Trustee, Petitioner v.

Commissioner”.   Mr. Chisum did not object to this identification

of Four WS TT01 as petitioner’s trustee, either when the Court

changed the caption or at any later time.

     Mr. Chisum submitted many other documents to the Court after

the petition was filed; he signed these documents above the

typewritten names “Four WS TT01, Trustee” or “Agent for Trustee”.
                               - 12 -


Mr. Chisum did not submit a motion or pleading identifying

himself as petitioner’s trustee until after the hearing of the

case at hand had been completed and the Court had pointed out the

inconsistency between Mr. Chisum’s documents and his claim that

he personally had been petitioner’s trustee since 1997.

Discussion

     Our jurisdiction generally depends upon the issuance of a

valid notice of deficiency and the filing of a timely petition.

See Rule 13; Pyo v. Commissioner, 83 T.C. 626, 632 (1984); Mollet

v. Commissioner, 82 T.C. 618, 623 (1984); Keeton v. Commissioner,

74 T.C. 377, 379 (1980).    Petitioner contests our jurisdiction on

the ground that no valid deficiency notice was issued.

Respondent asserts we must dismiss because no valid petition was

filed.    For the reasons set forth below, we disagree with

petitioner and agree with respondent.11

     Petitioner’s Motion To Dismiss

     Section 6212(a) provides that, if the Secretary “determines”

that there is a deficiency in income tax, the Secretary is

authorized to send notice of such deficiency to the taxpayer.    In

Scar v. Commissioner, 814 F.2d at 1369-1370, the Court of Appeals


     11
       It might be argued, see Lee Enters., Inc. v.
Commissioner, T.C. Memo. 1992-629, and cases cited therein, that
we have no occasion to reach the argument underlying petitioner’s
motion to dismiss because petitioner’s motion would be mooted by
our granting of respondent’s motion. In the interest of
completeness, we first address petitioner’s motion.
                              - 13 -


for the Ninth Circuit concluded that no “determination” had been

made; it held that the notice was null and void as a result and

dismissed the action for lack of jurisdiction in favor of the

taxpayer.

     Petitioner argues that respondent’s statutory notices to

petitioner, Mr. Johnston, and Ms. Ghavami, which attributed the

same amount of income to each of them, show that:    (1) Respondent

failed to “determine” a deficiency in petitioner’s tax; (2) the

notice to petitioner was invalid as a result; and (3) we must

dismiss the case at hand in favor of petitioner under the

rationale set forth by the Court of Appeals in Scar.      We

disagree.

     In Johnston v. Commissioner, T.C. Memo. 2000-315, Mr.

Johnston made an identical argument to support his claims that

the notice he received was invalid and that his case had to be

dismissed for lack of jurisdiction.    We concluded in Johnston

that this argument had no merit; we reach the same conclusion

about petitioner’s argument in the case at hand.

     There is no need to repeat here the detailed legal analysis

set forth in our Johnston opinion.     The conditions for the

application of Scar v. Commissioner, supra, simply do not exist

in the case at hand.   Petitioner has not shown that no

determination was made, cf. Scar v. Commissioner, supra at 1367
                              - 14 -


n.6, and the notice to petitioner is not invalid on its face,12

see Kantor v. Commissioner, 998 F.2d 1514, 1521-1522 (9th Cir.

1993) (Scar rule is limited to narrow circumstances where the

notice of deficiency reveals on its face that no determination

was made); Clapp v. Commissioner, 875 F.2d 1396, 1401 (9th Cir.

1989); Campbell v. Commissioner, 90 T.C. 110 (1988).

     The short answer to petitioner’s contention is that, under

the circumstances of the case at hand, respondent is entitled to

issue alternative notices attributing the same income to

different taxpayers.   See Clapp v. Commissioner, supra at 1402.

     We conclude that respondent examined information relating to

petitioner and determined a deficiency in petitioner’s tax.

Petitioner’s argument to the contrary has no merit; we will deny

petitioner’s motion to dismiss.

     Respondent’s Motion To Dismiss

     Mr. Chisum signed the petition on February 27, 1998, above

the title “Managing Agent for Trustee”.   The caption Mr. Chisum

placed on the petition identified the “Petitioner” as “UNIVERSAL

TRUST 06-15-90".   Neither the caption nor the body of the

petition identified petitioner’s trustee.




     12
       We note that the amounts of expense and distribution
deductions disallowed by respondent’s notice to petitioner were
identical to the amounts of those deductions claimed on the Form
1041.
                              - 15 -


     According to respondent, Mr. Chisum has not shown that, when

he signed the petition, he was petitioner’s trustee or otherwise

had capacity to commence litigation on behalf of petitioner.

Respondent asserts that as a result no valid petition has been

filed and we must dismiss the case at hand for lack of

jurisdiction.

     Mr. Chisum counters that he was petitioner’s trustee when he

signed the petition and that as trustee he had authority to act

for petitioner under State law.   Accordingly, Mr. Chisum claims

that a valid petition was filed in the case at hand.

     We agree with respondent.

     We first note that petitioner has the burden of proving we

have jurisdiction by establishing affirmatively all facts giving

rise to our 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); National Comm. To Secure Justice v.

Commissioner, 27 T.C. 837, 838-839 (1957); Consolidated Cos.,

Inc. v. Commissioner, 15 B.T.A. 645, 651-652 (1929).     Of course,

a timely filed petition is a prerequisite to our jurisdiction.

See Rule 13(c); Pyo v. Commissioner, supra at 632; Mollet v.

Commissioner, supra at 623; Keeton v. Commissioner, supra at 379.

Furthermore, it is well settled that unless the petition is filed

by the taxpayer, or by someone lawfully authorized to act on the
                              - 16 -


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.”

Rule 60(c) states that the capacity of a fiduciary or other

representative to litigate in the Court shall be determined in

accordance with the law of the jurisdiction from which such

person’s authority is derived.

     The record assembled by Mr. Chisum to support his authority

to institute this case on behalf of petitioner is riddled with

gaps and inconsistencies and is difficult to understand.    For

example, it is not even clear what State’s law we should apply to

determine Mr. Chisum’s capacity.   Mr. Chisum claims that

California law governs.   However, Mr. Chisum has also stated that

“I function from Arizona”, and the documents he has filed make

some reference to Arizona law.   Moreover, petitioner’s original

indenture states that petitioner was domiciled in Nevada and that

Nevada law governs, while the revised indenture states that

petitioner was domiciled in Delaware and that Delaware law

governs.   Although Mr. Chisum has asserted that petitioner did

business in California during the year in issue, he has not

offered any explanation why California law is the relevant law,
                                - 17 -


or if it is, how and why petitioner’s domicile and governing law

were changed from Nevada to Delaware to California.

     We resolve this problem by assuming for argument’s sake

that, if Mr. Chisum was petitioner’s trustee as he claims, he had

authority to institute litigation on behalf of petitioner under

relevant State law.13

     Mr. Chisum claims he is the latest in a long line (or chain)

of entities who have served as petitioner’s trustee.         According

to Mr. Chisum, the following entities (or persons) served as

petitioner’s trustee, from petitioner’s formation in 1990 until

the time of the hearing:

              Period                       Claimed Trustee

     June 15, 1990, to Oct. 1,           Four WS TT01
      1991

     Oct. 1, 1991, to May 19,            Hamilton Florida
      1993

     May 19, 1993, to sometime           Hamilton Arizona
      in 1997

     Sometime in 1997 to time            Mr. Chisum (personally)
      of hearing

     As shown in the foregoing table, Mr. Chisum claims that he

has served as petitioner’s trustee since 1997.      Accordingly, he


     13
       See, e.g., Ariz. Rev. Stat. Ann. sec. 14-7233.C.25 (West
1995) (trustee may commence litigation on behalf of trust); Cal.
Probate Code sec. 16249(a) (West Supp. 2000) (same); Nev. Rev.
Stat. Ann. secs. 163.260, 163.375 (Michie 1993) (trustee may
commence litigation on behalf of trust if trust instrument so
provides); Del. Ch. R. 17(a) (trustee of express trust may sue);
Del. Super. Ct. Civ. R. 17(a) (same).
                               - 18 -


also claims that he was petitioner’s trustee when he signed the

petition in February 1998 and that he has been petitioner’s

trustee throughout this proceeding.

     We conclude that Mr. Chisum has not shown that he was

petitioner’s trustee (or that he otherwise had authority to

commence litigation on behalf of petitioner) when he signed the

petition or at any other time.   Our conclusion is based on the

following aspects of the record.

     First, many of the documents Mr. Chisum has submitted to the

Court contradict his claim that he personally has been

petitioner’s trustee since 1997.   For example, Mr. Chisum signed

the petition as “Managing Agent for Trustee”, not as “Trustee”;

the caption placed on the petition by Mr. Chisum identified the

“Petitioner” as “UNIVERSAL TRUST 06-15-90" without identifying

the trustee.   Shortly after the petition was filed, the Court on

its own motion changed the caption of the case at hand to the

following: “Universal Trust 06-15-90, Four WS TT01, Trustee,

Petitioner v. Commissioner”.   Mr. Chisum did not object to the

Court’s identification of Four WS TT01 as petitioner’s trustee,

either when the Court changed the caption or at any later time.

Moreover, Mr. Chisum continued to sign documents submitted to the

Court above the typewritten names “Four WS TT01, Trustee” or

“Agent for Trustee”.   Mr. Chisum did not file a motion or other

document identifying himself as trustee until after the hearing
                                - 19 -


was over and the Court had pointed out the inconsistencies in

Mr. Chisum’s prior documents.

     Second, Mr. Chisum has not shown that he ever had authority

to act for Four WS TT01, petitioner’s claimed first trustee.       The

record does not contain any documentary evidence establishing the

existence of Four WS TT01, describing Four WS TT01, or stating

who had authority to act on Four WS TT01's behalf.      Moreover, we

did not find credible Mr. Chisum’s testimony about Four WS TT01

and his authority to act for Four WS TT01.

     Mr. Chisum’s failure to show his authority to act for Four

WS TT01 is alone fatal to petitioner’s position.      The record

contains a document that purportedly evidences Four WS TT01's

resignation as trustee and its consent to the appointment of

Hamilton Florida as successor trustee.      However, this document

was signed by Mr. Chisum, purportedly on behalf of Four WS TT01.

If Mr. Chisum did not have authority to act for Four WS TT01,

then none of the entities Mr. Chisum claims were successor

trustees of petitioner was properly appointed, including Mr.

Chisum himself.

     Third, there are problems with the proof relating to Mr.

Chisum’s claimed chain of trusteeship, in addition to the

problems relating to Four WS TT01.       For example, the record does

not contain any original documents demonstrating the appointment

of Mr. Chisum as trustee in 1997.    Mr. Chisum claims the document
                              - 20 -


naming him trustee was lost when respondent was copying it; we

find this difficult to believe.   Moreover, the “memorial writing”

concerning Mr. Chisum’s appointment, which Mr. Chisum prepared

during the hearing, is inconsistent with the rest of the record.

The memorialization refers to Hamilton Arizona as “Hamilton &

Baxter, LLC”, and was signed by Mr. Chisum and Donna Chisum as

the “members” of that LLC.   However, the articles of organization

of Hamilton Arizona state that the organization’s name is

“Hamilton & Baxter, L.C.” (emphasis added), not LLC; the articles

also state that the organization’s “Members and Management” were

Mr. Chisum and “Represent-Tour, L.C.”, not Mr. Chisum and Donna

Chisum.

     As another example of the problems with the proof proffered

by Mr. Chisum, the record contains copies of documents which

purport to evidence Hamilton Florida’s acceptance of its

appointment as trustee and its later resignation in favor of

Hamilton Arizona as successor trustee.   However, these documents

were purportedly signed by Mr. L.R. Mayer.   Mr. Mayer did not

appear at the hearing or otherwise authenticate the documents.

     In short, the record that Mr. Chisum has created contains so

many infirmities that the Court has not been persuaded, if the

documents in that record created a fiduciary relationship with a

trustee, that Mr. Chisum has (or ever had) authority to act on

behalf of the trustee, or that Mr. Chisum ever became the
                                - 21 -


trustee.   In addition, there has been no showing that Mr. Chisum

was otherwise authorized to act on behalf of petitioner.

     We have considered all allegations and arguments made by

Mr. Chisum that we have not discussed herein; we find them to be

without merit or irrelevant.    Accordingly, respondent’s motion to

dismiss for lack of jurisdiction will be granted.

     Mr. Chisum, Section 6673, and Other Sanctions

     During the trial of Johnston v. Commissioner, T.C. Memo.

2000-315, respondent’s counsel asked the Court to consider

imposing a penalty on Mr. Chisum under section 6673.    However,

respondent’s counsel later informed the Court that respondent

would not move for a penalty against Mr. Chisum, in either

Johnston or the case at hand.    Under all the circumstances of the

case at hand, we do not impose a penalty on Mr. Chisum.

     We would not presume to try to tell respondent how to do his

job, see United States v. Payner, 447 U.S. 727, 737 (1980)

(Burger, C.J., concurring) (Supreme Court has no general

supervisory authority over executive branch operations),

particularly in view of the limited resources currently available

to the Internal Revenue Service.    However, the expenditures of

time and resources of the Court and the Commissioner in this and

other cases in which Mr. Chisum has acted, see supra note 3, have

been so substantial as to raise the question whether some other

sanction might be appropriate.    We therefore leave with
                             - 22 -


respondent’s management the question whether Mr. Chisum’s conduct

in this and other cases has created an appropriate occasion for

imposition of tax shelter promoter/operator penalties under

section 6700 or section 6701, cf., e.g., Kersting v. United

States, 206 F.3d 817 (9th Cir. 2000), an action for injunctive

relief under section 7408(a), action to enjoin promoters of

abusive tax shelters, etc., cf. e.g., United States v. Raymond,

228 F.3d 804 (7th Cir. 2000), or a criminal investigation of the

type that culminated with Mr. Mayer’s indictment and conviction.

See supra note 10.14

     In accordance with the foregoing,


                                         An order will be entered

                                   denying petitioner’s Motion To

                                   Dismiss and granting

                                   respondent’s Motion To Dismiss

                                   for Lack of Jurisdiction.




     14
       See IRS website on abusive trusts, “www.treas.gov/irs/
ci”, describing criminal enforcement activities against Mr. Mayer
and others. See also Hamilton, IRS Crackdown on Abusive Trusts
Producing Convictions, Highlights & Documents (Oct. 2, 2000).
