                  T.C. Summary Opinion 2003-140



                     UNITED STATES TAX COURT



     SWEETBUSH TRUST, DAVID KEITH JACOBS, TRUSTEE, ET AL.,1
  Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket Nos. 7616-02S, 7621-02S,     Filed September 30, 2003.
                 9460-02S, 9462-02S.

     David Keith Jacobs, for petitioners.

     Huong T. Duong, for respondent.



     PAJAK, Special Trial Judge:   These cases were heard pursuant

to the provisions of section 7463 of the Internal Revenue Code in

effect at the time the petitions were filed.   The decisions to be

entered are not reviewable by any other court, and this opinion



     1
        Cases of the following petitioners are consolidated
herewith: BVE Trust, David Keith Jacobs, Trustee, docket No.
7621-02S; Sweetbush Trust, David Keith Jacobs, Trustee, docket
No. 9460-02S; and BVE Trust, David Keith Jacobs, Trustee, docket
No. 9462-02S.
                               - 2 -

should not be cited as authority.   Unless otherwise indicated,

subsequent section references are to the Internal Revenue Code in

effect for the year(s) in issue, and all Rule references are to

the Tax Court Rules of Practice and Procedure.

     These consolidated cases were heard on respondent’s Motions

To Dismiss For Lack Of Jurisdiction under Rule 60 in four cases

involving the Sweetbush Trust and the BVE Trust.2    The creators

of the trusts are Alan C. Schwemmer and Esther R. Schwemmer (Mr.

and Mrs. Schwemmer).   The petitions in these cases were filed for

Sweetbush Trust and BVE Trust by :David-Keith:Jacobs (sic) (Mr.

Jacobs), a purported trustee for each trust.     The petitions are

replete with tax protester arguments.

     Respondent’s position is that each case should be dismissed

on the ground that the petition was not filed by a trustee

authorized to bring suit on behalf of the trust.

     Petitioners’ responses to respondent’s motions to dismiss

were filed in docket numbers 9460-02S and 9462-02S.    Objections

to respondent’s motions to dismiss were filed in all four

dockets.   The Objections, which were signed by Mr. Jacobs, have

as the core thesis that these cases should be:

     dismissed for lack of Subject Matter Jurisdiction on the
     grounds that the Notice of Deficiency (Determination) issued


     2
        Use of the terms “trust” and “trustee” (and their
derivatives) are intended for narrative convenience only. Thus,
no inference should be drawn from our use of such terms regarding
any legal status or relationship.
                               - 3 -

     by respondent was issued on hearsay facts and evidence.
     Petitioner demands that respondent provide certified facts
     or evidence of a statutory correct assessment or tax
     liability to support any claimed deficiency. Lacking a
     statutory correct assessment or tax liability the notice of
     deficiency is null and void and this court does not have
     Subject Matter Jurisdiction.

     Insofar as we can ascertain, the facts relating to the two

trusts, created the same day, are virtually identical with the

exception that Richard M. Schwemmer apparently is one of the

trustees in the Sweetbush Trust, and Keith A. Schwemmer

apparently is one of the trustees in the BVE Trust.   Hereinafter,

we refer only to the Sweetbush Trust, but all comments and

holdings apply equally to the BVE Trust.

     Petitioner provided respondent with a Memorandum Of Trust

(memorandum) dated May 19, 1992.    The memorandum appointed Luther

J. Wilson and Richard M. Schwemmer as trustees of the Sweetbush

Trust.   The memorandum provided:

          NOTWITHSTANDING any other provision in this trust
     instrument, no power shall be exercised, nor any action
     taken, by the trustees except upon the unanimous consent of
     all trustees having authority to exercise that power.

There is no document jointly signed by Luther J. Wilson and

Richard M. Schwemmer that authorizes Mr. Jacobs to represent

Sweetbush Trust.

     Rule 60(a)(1) provides, in pertinent part:

        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 liability (in the
     case of a notice of liability), or by and with the full
     descriptive name of the fiduciary entitled to institute a
                               - 4 -

     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
     reasonable time has been allowed after objection for
     ratification by such party of the bringing of the case; and
     such ratification shall have the same effect as if the case
     had been properly brought by such party. * * *

     At the hearing, the Court granted Mr. Jacobs an additional

30 days to provide documentation to refute respondent’s position.

Mr. Jacobs provided documentation, but it did not refute

respondent’s position.

     The memorandum refers to the trust indenture whereby Mr. and

Mrs. Schwemmer as “Creators” created a trust called Sweetbush.

What is critical in this case is that Mr. Jacobs did not submit a

copy of the trust indenture.   Without this trust indenture, and

related documents, we do not know who the relevant trustees are,

nor the powers of the trustees or others named in that

instrument.   If a trustee resigns, we do not know if or how a

successor trustee is appointed.   We cannot ascertain whether any

of the purported documents presented by Mr. Jacobs were properly

executed by the requisite number of persons so as to appoint Mr.

Jacobs as trustee.   The undesignated, unsigned, undated, and

incomplete documents provided by Mr. Jacobs are given no weight.

The other documents, without more, are incoherent.

     Although we gave Mr. Jacobs the opportunity, he did not

establish a paper trail authorizing him to act as Sweetbush’s

trustee.   On the record before us, we find that Mr. Jacobs has
                                 - 5 -

failed to establish that he is authorized to act on behalf of

Sweetbush Trust.   Bella Vista Chiropractic Trust v. Commissioner,

T.C. Memo. 2003-8; Jeff Burger Prods., LLC v. Commissioner, T.C.

Memo. 2000-72.

     Respondent filed motions for summary judgment in docket

numbers 9460-02S and 9462-02S.    These motions will be denied as

moot.

     All of the arguments and contentions that have not been

analyzed herein have been considered, but do not require any

further discussion.

     To reflect the foregoing,

                                         Orders of dismissal for lack

                                 of jurisdiction granting

                                 respondent’s motions will be

                                 entered in all four dockets.

                                 Respondent’s motions for summary

                                 judgment will be denied in docket

                                 Nos. 9460-02S and 9462-02S.
