                        T.C. Memo. 2000-331



                      UNITED STATES TAX COURT



     ABFA TRUST, DAVID JABLONSKI, TRUSTEE, Petitioner v.
      COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 16061-99.                    Filed October 25, 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



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


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

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 trustee.    Petitioner petitioned the Court to

redetermine respondent’s determination of deficiencies of

$323,810 and $245,822 in its Federal income tax for 1995 and

1996, respectively, accuracy-related penalties under section

6662(a) of $64,762 and $49,164.40, respectively, and a $64,762

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.

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

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



     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.
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the ADFA Trust but not did include any trust instrument for

petitioner (the ABFA Trust).    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

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



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

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.
                                - 5 -


Commissioner, 114 T.C. 268 (2000); Renaissance Enter. 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, 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 a

trust, and Mr. Jablonski has not been proven to be its trustee.

     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.5     See AL Trust v.

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


     4
         Petitioner’s mailing address is in Alexandria, Virginia.
     5
       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, and such is the case
where a trust lacks a corpus. See Patz v. Commissioner, 69 T.C.
497, 501 (1977). The record leads us to believe that petitioner
has no corpus.
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T.C. Memo. 2000-275; BHC Trust v. Commissioner, T.C. Memo. 2000-

274; Malvern Hills Trust v. Commissioner, T.C. Memo. 2000-273; PM

Trust v. Commissioner, T.C. Memo. 2000-272;6 cf. Renaissance

Enters. Trust v. Commissioner, supra.     To reflect the foregoing,

                                           An appropriate order of

                                      dismissal for lack of

                                      jurisdiction will be entered.




     6
       We have decided the same issue adverse to the trusts in
the cases of AL Trust, BHC Trust, Malvern Hills Trust, PM Trust,
and YMO Trust. Mr. Jablonski also petitioned the Court on behalf
of each of those trusts.
