                              T.C. Memo. 2016-106



                        UNITED STATES TAX COURT



   MARCO A. FRAUSTO, INC., AND MARCO A. FRAUSTO, Petitioners v.
       COMMISSIONER OF INTERNAL REVENUE, Respondent



      Docket No. 13533-15.                         Filed May 26, 2016.



      Marco A. Frausto, pro se.

      Steven Mitchell Roth, for respondent.



                          MEMORANDUM OPINION


      VASQUEZ, Judge: This matter is before the Court on respondent’s motion

to dismiss for lack of jurisdiction. As explained below, we will grant respondent’s

motion.
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[*2]                                  Background

         On February 27, 2015, respondent mailed petitioners two separate notices

of deficiency--one addressed to Marco A. Frausto and one addressed to Marco A.

Frausto, Inc. (corporation). A single petition was filed with the Court on May 22,

2015, in the name of Marco A. Frausto and signed by Marco A. Frausto in his

individual capacity. However, attached to the petition was the notice of deficiency

addressed to the corporation. The petition does not have attached to it the notice

of deficiency addressed to Mr. Frausto.

         At the time he filed the petition, Mr. Frausto resided in California. The

Court is unable to determine in which State the corporation is incorporated.

         Respondent moves to dismiss arguing that the Court lacks jurisdiction over

both the corporation and Mr. Frausto.

                                       Discussion

I.       Motion To Dismiss as to the Corporation

         Respondent argues that the Court lacks jurisdiction over the corporation

because Mr. Frausto lacks the capacity to represent the corporation before this

Court.

         Rule 60(a) provides that a case shall be brought by and in the name of the

person against whom the Commissioner determined the deficiency or by and with
                                         -3-

[*3] the full descriptive name of the fiduciary entitled to institute a case on behalf

of that person.1 Rule 60(c) provides that “[t]he capacity of a corporation to engage

in such litigation shall be determined by the law under which it was organized.

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”. Petitioners bear the burden of proving that this

Court has jurisdiction. See David Dung Le, M.D., Inc. v. Commissioner, 114 T.C.

268, 270 (2000), aff’d, 22 F. App’x 837 (9th Cir. 2001); Fehrs v. Commissioner,

65 T.C. 346, 348 (1975); Wheeler’s Peachtree Pharmacy, Inc. v. Commissioner, 35

T.C. 177, 180 (1960).

      In order to determine whether Mr. Frausto maintains the capacity to

represent the corporation under Rule 60(c), we must first apply the proper State

law. The record, however, does not show in which State, if any, the corporation

was organized. In fact, Mr. Frausto chose not to attend the hearing where he could

have provided the relevant information. Thus, in the absence of any evidence to

support our jurisdiction over the corporation, we hold that Mr. Frausto does not

have the capacity under Rule 60(c) to litigate in this Court on behalf of the

corporation.

      1
          All Rule references are to the Tax Court Rules of Practice and Procedure.
                                          -4-

[*4] Even if we were to find that Mr. Frausto had the capacity to represent the

corporation before this Court, we would still dismiss this case because the petition

was not filed in accordance with Rule 60(a). When Mr. Frausto filed the petition,

he did so in his individual capacity rather than in a capacity as a representative of

the corporation. The petition identifies petitioner as “Marco A. Frausto”. If the

petition was intended to be filed on behalf of the corporation, the name of

petitioner should have read “Marco A. Frausto, Inc.” Furthermore, the petition is

signed by Mr. Frausto in his individual capacity. If the petition was intended to be

filed on behalf of the corporation, the signature should have read “Marco A.

Frausto, Inc., by Marco A. Frausto, President”. See Rule 23(a)(3) (“[T]he

signature of a petitioner corporation or unincorporated association shall be in the

name of the corporation or association by one of its active and authorized officers

or members, as for example ‘Mary Doe, Inc., by Richard Roe, President’”.).

      For the reasons stated above, we lack jurisdiction over the corporation.

II.   Motion To Dismiss as to Mr. Frausto in His Individual Capacity

      Respondent argues that the Court lacks jurisdiction over Mr. Frausto in his

individual capacity because the petition does not have the proper notice of

deficiency attached to it and fails to set forth allegations of error as to the

deficiencies determined against him individually.
                                          -5-

[*5] Rule 34(a) provides that “[o]rdinarily, a separate petition shall be filed with

respect to each notice of deficiency or each notice of liability. * * * The petition

shall be complete, so as to enable ascertainment of the issues intended to be

presented.” For a petition to be considered complete it must set forth allegations

of error and a copy of the applicable notice of deficiency shall be attached to it.

Rule 34(b)(4), (8). The failure of a petition to satisfy these requirements may

result in dismissal of the case. Rule 34(a).

      We have previously addressed whether dismissal for lack of jurisdiction is

appropriate under similar circumstances. In Normac, Inc. v. Commissioner, 90

T.C. 142, 144 (1988), the Commissioner sent separate deficiency notices to parent

and subsidiary entities. The two entities filed a single petition but failed to attach

the notice of deficiency addressed to the subsidiary. Id. We held that we lacked

jurisdiction over the subsidiary entity because the petition did not indicate the

amounts of the deficiencies determined against the subsidiary or the amounts of

the deficiencies the subsidiary was contesting. Id. In O’Neil v. Commissioner, 66

T.C. 105, 107 (1976), the taxpayer attached to the petition a notice of deficiency

determining three years of deficiencies but set forth allegations of error for only

two years. We held that the we lacked jurisdiction over the third year because the

taxpayer failed to set forth allegations of error for that year. Id.
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[*6] Similar to the taxpayers in Normac, Mr. Frausto did not attach the

appropriate notice of deficiency to the petition. Furthermore, the petition does not

indicate the amounts determined against him individually nor the amounts of the

deficiencies he is contesting. In fact, the petition makes no reference at all to the

notice of deficiency addressed to Mr. Frausto in his individual capacity. And

much like the taxpayer in O’Neil, Mr. Frausto does not set forth allegations of

error as to the deficiencies determined against him individually. Accordingly, we

find that we lack jurisdiction over Mr. Frausto in his individual capacity as well.

      In reaching our holdings, we have considered all arguments made, and to

the extent not mentioned, we consider them irrelevant, moot, or without merit.

      To reflect the foregoing,


                                                     An appropriate order of

                                               dismissal for lack of jurisdiction

                                               will be entered.
