                          T.C. Memo. 2000-74



                       UNITED STATES TAX COURT



              LEGAL-EASE, A TRUST, JAMES R. SLAGLE &
          RUSSELL BUCHANAN, CO-TRUSTEES, Petitioner v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 564-99.                          Filed March 3, 2000.



     James R. Slagle and Russell W. Buchanan, for petitioner.

     Richard A. Rappazzo, for respondent.



                          MEMORANDUM OPINION


     CHIECHI, Judge:     This case is before the Court on

respondent's motion to dismiss for lack of jurisdiction

(respondent’s motion).    We shall grant respondent’s motion.
                               - 2 -


                            Background

     For purposes of respondent’s motion, the parties do not

dispute the following factual allegations that are part of the

record.   At all relevant times, the mailing address for peti-

tioner was in Arizona.

     Petitioner filed a Federal income tax return for estates and

trusts, Form 1041 (return), for taxable year 1994.   Although the

portion of the first page of that return requesting petitioner to

identify the “Name and title of fiduciary” was left blank, that

return was signed by Dennis H. Lawrence as “fiduciary or officer

representing” trust.   Petitioner’s 1994 return was also signed by

R.W. Buchanan as paid return preparer.   In the Schedule K-1

attached to the 1994 return filed by petitioner, the beneficiary

was identified as “BULL HOLDINGS A TRUST”, but no fiduciary was

identified as required by that schedule.

     Upon commencement of the examination of petitioner’s taxable

year 1994, respondent requested complete copies of the trust

documents relating to petitioner as well as other items of

substantiation.   Petitioner refused to provide respondent with

the trust documents and other information requested.

     On March 4, 1998, petitioner filed with the Internal Revenue

Service Form 2848, Power of Attorney and Declaration of Represen-

tative.   That form, which pertained to petitioner’s taxable years

1994, 1995, and 1996, was signed by James R. Slagle (Mr. Slagle)
                                - 3 -


as trustee and by Russell W. Buchanan (Mr. Buchanan) as trustee.

Attached to the Form 2848 filed by petitioner were two Forms 56,

Notice Concerning Fiduciary Relationship, and two documents

entitled “ACCEPTANCE OF THE TRUST BY THE TRUSTEE”.   One of those

Forms 56 identified Russell W. Buchanan as the fiduciary for

petitioner and was signed by him as trustee.   The other Form 56

identified James R. Slagle as the fiduciary for petitioner and

was signed by him as trustee.

     One of the two documents entitled “ACCEPTANCE OF THE TRUST

BY THE TRUSTEE” that were attached to the Form 2848 filed by

petitioner with respect to its taxable years 1994, 1995, and 1996

stated in pertinent part:

     I/We, DENNIS H. LAWRENCE & MELISSA R. LAWRENCE, the
     Grantor(s) of LEGAL-EASE, A TRUST, do hereby select and
     appoint JAMES R. SLAGLE * * * as the trustee on the
     1ST day of JANUARY , 19 94 .

        *       *       *        *      *       *       *

          I, JAMES R. SLAGLE, * * * do hereby accept the
     position as a trustee of LEGAL-EASE, A TRUST, * * *

The foregoing document contains signatures that purport to be the

signatures of Dennis H. Lawrence, Melissa R. Lawrence, and James

R. Slagle.

     The other document entitled “ACCEPTANCE OF THE TRUST BY THE

TRUSTEE” stated in pertinent part:

     I, James R. Slagle , the Trustee of LEGAL-EASE, A
     TRUST, do hereby select and appoint:
                                - 4 -


              Russell W. Buchanan
            Name of New Trustee

        *        *       *          *   *       *         *

     as a trustee of LEGAL-EASE, A TRUST, on the    1st   day
     of February , 19 94 .

        *        *       *          *   *       *         *

     I, Russell W. Buchanan , * * * do hereby accept the
     position as a trustee of LEGAL-EASE, A TRUST * * *

The foregoing document contains signatures that purport to be the

signatures of James R. Slagle and Russell W. Buchanan.

     The notice of deficiency issued to petitioner was addressed

as follows:

     Legal-Ease, A Trust
     James R. Slagle, Trustee
     2256 E. Jaeger St.
     Mesa, Arizona 85213-2933

     Petitioner filed a petition in this Court which was signed

on its behalf by Mr. Slagle as “Trustee” and by Mr. Buchanan as

“Trustee”.

     Respondent’s motion contends in pertinent part:

          8. * * * Upon information and belief, the peti-
     tioner trust is an Arizona trust, and the law in Ari-
     zona, therefore, controls who has the capacity to bring
     the instant suit.

          9. Arizona law provides that the trustee has the
     capacity to institute court proceedings on behalf of
     the trust. Ariz. Rev. Stat. Ann. § 14-7233 C. 25.

        *        *       *          *   *       *         *

          13. To date, petitioner has not provided respon-
     dent with any trust document or any other sort of
                              - 5 -


     documentary evidence regarding who was the first ap-
     pointed trustee of the petitioner trust. Without the
     trust document, it is impossible to determine whether
     subsequent appointments of successor trustees are legal
     and/or valid.

          14. There is absolutely no evidence from which
     the Court can adduce that the documents referred to
     * * * above [the two Forms 56 and the two documents
     entitled “ACCEPTANCE OF THE TRUST BY THE TRUSTEE” that
     were attached to the Form 2848 filed by petitioner],
     create a legal assignment to either James R. Slagle
     and/or Russell Buchanan as trustees. These documents
     appear to be self-serving and created solely in re-
     sponse to respondent’s audit examination.

          15. Petitioner has provided no evidence that said
     assignments are valid or authorized under the terms of
     the trust indenture (assuming one exists).

          16. * * * petitioner has failed to demonstrate
     that either James R. Slagle or Russell Buchanan were
     [sic] legally appointed as trustees and therefore, [is]
     authorized to act on behalf of the petitioner trust and
     bring the instant case before this Court. See T.C.
     Rule 60(c).

     Petitioner filed a notice of objection to respondent’s

motion in which it asks the Court to deny that motion.   That

notice of objection asserts in pertinent part:

          1. On October 7, 1998, respondent sent a Notice
     of Deficiency to petitioner. In that Notice of Defi-
     ciency, respondent identified James R. Slagle & Russell
     W. Buchanan as the Trustees for petitioner, Legal-Ease,
     A Trust.

          2. Petitioner has filed the appropriate Form 56
     in which James R. Slagle and Russell W. Buchanan have
     identified themselves as trustees of the said trust and
     attached as supporting documentation the Acceptance of
     the Trust by the Trustee. These documents show that
     each was appointed as a trustee of Legal-Ease, A Trust,
     and that each signed acknowledging their acceptance of
     said appointment.
                               - 6 -


          3. Upon commencement of the examination, respon-
     dent requested a copy of all documents relating to the
     trust. Petitioner requested that respondent first
     proves [sic] jurisdiction over a Pure Trust in order to
     make such a request. Respondent has failed on all
     requests to present to the petitioner any documents or
     proof that respondent has authority to examine the
     records or documentation of Legal-Ease, A Trust.
     Respondent is now using the Motion to Dismiss for Lack
     of Jurisdiction in an effort to force petitioner to
     hand over to respondent, records and documents it is
     not entitled to have.

          4. Respondent has recognized James R. Slagle as a
     Trustee of Legal-Ease, A Trust for many years.
     Respondent routinely addresses all correspondence to
     “Legal-Ease, A Trust; James R. Slagle, Trustee”. * * *

     The Court held a hearing on respondent’s motion, at which

Mr. Slagle and Mr. Buchanan appeared on behalf of petitioner.1

Respondent introduced into evidence the 1994 return filed by

petitioner.   Petitioner proffered no evidence, and the parties

presented no new arguments, at that hearing.

                            Discussion

     Rule 602 provides in pertinent part:

          (a) Petitioner: (1) Deficiency or Liability
     Actions: 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 by and with the full descriptive name of the
     fiduciary entitled to institute a case on behalf of

     1
      At the hearing, the Court informed Mr. Slagle and Mr.
Buchanan that its allowing them to appear at the hearing as the
alleged trustees of petitioner did not mean that the Court agreed
that they in fact were petitioner’s duly appointed and authorized
trustees.
     2
      All Rule references are to the Tax Court Rules of Practice
and Procedure.
                                   - 7 -

     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 reason-
     able time has been allowed after objection for ratifi-
     cation 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. * * *

         *      *         *         *       *       *       *

          (c) Capacity: * * * The capacity of a fiduciary
     or other representative to litigate in the Court shall
     be determined in accordance with the law of the juris-
     diction from which such person's authority is derived.

     Petitioner does not dispute respondent’s statement in

respondent’s motion that it is a trust organized under the laws

of the State of Arizona.      Under Arizona law, see Rule 60(c), a

trustee has the power to commence litigation on behalf of a

trust.   See Ariz. Rev. Stat. Ann. sec. 14-7233.C.25. (West 1995).

In the instant case, petitioner has the burden of proving that

this Court has jurisdiction, see Fehrs v. Commissioner, 65 T.C.

346, 348 (1975); National Comm. to Secure Justice in the

Rosenberg Case v. Commissioner, 27 T.C. 837, 839 (1957), by

establishing affirmatively all facts giving rise to our jurisdic-

tion, see Wheeler's Peachtree Pharmacy, Inc. v. Commissioner, 35

T.C. 177, 180 (1960); Consolidated Cos., Inc. v. Commissioner, 15

B.T.A. 645, 651 (1929).       In order to meet that burden, petitioner

must provide evidence establishing that Mr. Slagle and Mr.

Buchanan have authority to act on its behalf.      See National Comm.

to Secure Justice in the Rosenberg Case v. Commissioner, supra at
                                 - 8 -

839-840; Coca-Cola Bottling Co. v. Commissioner, 22 B.T.A. 686,

700 (1931).

     We are not persuaded by the various documents that are part

of the record, including the documents entitled “ACCEPTANCE OF

THE TRUST BY THE TRUSTEE”, that Mr. Slagle and Mr. Buchanan are

the duly appointed and authorized trustees of petitioner.    In

this connection, it is significant that petitioner has not made

part of the record the complete trust documents for petitioner

(assuming such documents exist).3    Without such documents, we are

unable to determine whether the appointment of one or more

trustees is valid.   On the record before us, we find that

petitioner has failed to establish that either Mr. Slagle or Mr.

Buchanan is authorized to act on its behalf.4

     To reflect the foregoing,

                                      An order of dismissal for lack

                                 of jurisdiction granting respon-

                                 dent’s motion will be entered.




     3
      Nor has petitioner introduced into the record any other
documentary evidence establishing who the first appointed trustee
of petitioner was.
     4
      We have considered all of the contentions and arguments of
petitioner that are not discussed herein, and we find them to be
without merit and/or irrelevant.
