                        T.C. Memo. 2003-58



                      UNITED STATES TAX COURT



       HOME HEALTH SERVICES TRUST, ROBERT HOGUE, TRUSTEE,
   Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 2212-02.             Filed March 3, 2003.


     Robert Hogue, pro se.

     Jeremy L. McPherson, for respondent.


                        MEMORANDUM OPINION


     DAWSON, Judge:   This case was assigned to Special Trial

Judge Robert N. Armen, Jr., pursuant to the provisions of section

7443A(b)(5) and Rules 180, 181, and 183.1    The Court agrees with

and adopts the opinion of the Special Trial Judge, which is set

forth below.


     1
        Unless otherwise indicated, all section references are to
the Internal Revenue Code, as amended, and all Rule references
are to the Tax Court Rules of Practice and Procedure.
                                   - 2 -

                  OPINION OF THE SPECIAL TRIAL JUDGE

     ARMEN, Special Trial Judge:       This matter is before the Court

on respondent’s motion to dismiss for lack of jurisdiction.2

Respondent maintains that the petition was not filed by a trustee

authorized to bring suit on behalf of Home Health Services Trust

(Home Health).3    As discussed in detail below, we shall grant

respondent’s motion and dismiss this case for lack of

jurisdiction.

Background

     A.     Notice of Deficiency

     Respondent issued a notice of deficiency to Home Health

determining a deficiency in, an addition to, and a penalty on its

Federal income tax as follows:

                                                 Accuracy-Related
                            Addition To Tax          Penalty
     Year      Deficiency   Sec. 6651(a)(1)        Sec. 6662(a)

     1997       $137,942       $27,588              $27,588




     2
        This case was consolidated for hearing with three related
cases in which Robert Hogue also filed petitions purportedly as
“trustee” on behalf of various so-called trusts. See Residential
Mgmt. Servs. Trust v. Commissioner, T.C. Memo. 2003-56; Rancho
Residential Servs. Trust v. Commissioner, T.C. Memo. 2003-57;
Sunshine Residential Trust v. Commissioner, T.C. Memo. 2003-59.
     3
        Use of the terms “trust” and “trustee” (and their
derivatives) is intended for narrative convenience only. Thus,
no inference should be drawn from our use of such terms regarding
any legal status or relationship.
                               - 3 -

The deficiency in income tax is based on the disallowance of

deductions claimed by Home Health on Schedule C, Profit or Loss

from Business.   In this regard, respondent determined that the

deductions:

     are disallowed because you failed to establish the
     amount, if any, that was paid during the taxable year
     for ordinary and necessary business expenses, and you
     failed to establish the cost or other basis of the
     property claimed to have been used in business.

     B.   Petition

     The Court subsequently received and filed a petition for

redetermination challenging the notice of deficiency.4   The

petition was signed by Robert Hogue as Home Health’s purported

“trustee”.

     Paragraph 4 of the petition, which sets forth the bases on

which the notice of deficiency is challenged, alleges as follows:

     (1) The Statutory Notice of Deficiency was issued to
     petitioner claiming petitioner had unreported income.
     Petitioner denies having any unreported income. (2)
     Attached to the Notice of Deficiency, IRS Form 4549-A,
     income tax examination changes, line 9 states, “Total
     Corrected Tax Liability.” Petitioner denies having a
     tax liability. (3) Respondent has failed to provide
     the petitioners [sic] with the USC Title 26 taxing
     statute that applies. (4) Respondent has failed to
     provide the petitioners [sic] with certified assessment
     information as per Internal Revenue Regulation
     301.6203-1. (5) Respondent has failed to identify the
     individual who will certify to the tax adjustments the
     determination was based on. (6) Petitioner claims, the
     Notice of Deficiency, the claimed tax liability, and


     4
        Home Health’s principal place of business was in
California at the time that the petition was filed with the
Court.
                                - 4 -

     the claimed unreported income, are all based on
     unfounded and hearsay evidence[;] no examination of
     books and records has been done so we are presuming
     this is a naked assessment. (7) There can be no
     meaningful administrative hearing until respondent
     provides petitioner with certified evidence to support
     the Notice of Deficiency and the claimed tax liability.

     C.   Respondent’s Motion

     Respondent filed a motion to dismiss for lack of

jurisdiction.   In the motion, respondent asserts that this case

should be dismissed for lack of jurisdiction “on the ground that

the petition was not filed by a trustee authorized to bring suit

on behalf of the trust”.

     Upon the filing of respondent’s motion to dismiss, the Court

issued an order directing Home Health to file an objection, if

any, to respondent’s motion, taking into account Rule 60, and to

attach to the objection a copy of the trust instrument or other

documentation showing that the petition was filed by a fiduciary

legally entitled to institute a case on behalf of Home Health.

The Court subsequently extended the time within which objection

was to be filed.

     D.   Robert Hogue’s Objection

     Ultimately, the Court received an objection, which was

signed by Robert Hogue, to respondent’s motion to dismiss.

Paragraph 5 of the objection states:
                              - 5 -

     ROBERT HOGUE presented a Trust instrument for the court
     which is a Contractual Contract Trust based on common
     law & the United States Constitution, Article One,
     Section 10., MR. HOGUE also presented notarized
     documentation to the court to show his acceptance of
     Trusteeship. As well as further documentation such as
     form 56, Fiduciary Signature card showing Robert Hogue
     as wet signature on bank account. At best this site is
     frivolous and without merit. The court is trying to
     mislead the petitioner in this court action. ROBERT
     HOGUE is the only person who can represent the trust.
     His description as Trustee for Home Health is well
     established in his everyday work as Trustee.

     Attached to the objection are copies of, inter alia, a

purported trust instrument dated May 24, 1994 (trust instrument),

a document entitled “Trustee Resignation/Appointment of

Successor-Trustee” executed on July 15, 1997, wherein a Douglas

J. Carpa, “trustee”, purportedly appoints Robert Hogue as the

successor trustee for Home Health (appointment document),5 an

undated document entitled “Letter of Resignation” (resignation

letter), documents entitled “Monthly Management Meeting”


     5
        The same trust instrument and appointment document were
both submitted to the Court by Robert Hogue in Home Health Servs.
Trust v. Commissioner, docket No. 9118-00, involving the 1996 tax
year, which was dismissed on the ground that Robert Hogue was not
a proper person authorized to petition the Court on behalf of the
trust. Likewise, with the exception of the name of the so-called
trust, the appointment document is identical to the appointment
document submitted to the Court by Robert Hogue in numerous cases
before this Court that were dismissed on the ground that Robert
Hogue was not a proper person authorized to petition the Court on
behalf of the “trust”. See Rancho Residential Facility Trust v.
Commissioner, docket No. 9120-00; Residential Mgmt. Servs. Trust
v. Commissioner, docket No. 9119-00 (involving the 1996 tax
year); Home Health Servs. Trust v. Commissioner, docket No. 9118-
00; Sunshine Trust v. Commissioner, docket No. 9117-00;
Residential Mgmt. Servs. Trust v. Commissioner, T.C. Memo. 2001-
297 (involving the 1995 tax year); cases cited supra n.2.
                              - 6 -

(purported minutes), and a provision of the Revised Statutes of

Nova Scotia, Canada.6

     The trust instrument is identical to the altered trust

instrument submitted to the Court by Robert Hogue in Residential

Mgmt. Servs. Trust v. Commissioner, T.C. Memo. 2003-56, including

the execution of the trust instrument before a notary public on

May 24, 1994, except for the name of the trust and the

recordation information stamped on the unnumbered cover page.

The recordation information stamped on the unnumbered cover page

of the trust instrument states as follows:7

                       OFFICIAL RECORDS OF
                  MARICOPA COUNTY [AZ] RECORDER
                          HELEN PURCELL
                   XX-XXXXXXX 05/25/94    10:25
                               LILIAN   3 of 3

In fact, the recordation information on the trust instrument is

in numerical order with the recordation information on the

altered trust instrument submitted to the Court in Residential

Mgmt. Servs. Trust, which states:




     6
        Specifically, Robert Hogue attached Nova Scotia’s
“Trustee Act, Chapter 479 of the Revised Statutes, 1989 amended
1992, c. 8, s. 37; 1994-95, c. 19", which has no relevance to the
present case. See Residential Mgmt. Servs. Trust v.
Commissioner, T.C. Memo. 2001-297.
     7
        We note that the record reflects that only the unnumbered
cover page of the trust instrument was purportedly recorded with
the Maricopa County Recorder in Arizona.
                               - 7 -

                       OFFICIAL RECORDS OF
                  MARICOPA COUNTY [AZ] RECORDER
                          HELEN PURCELL
                   XX-XXXXXXX 05/25/94    10:25
                               LILIAN   2 of 3

     The undated resignation letter, which had been furnished to

respondent by Robert Hogue, states as follows:

                      LETTER OF RESIGNATION

     To the TRUSTEES of
     HOME HEALTH SERVICES
     5505 Connecticut Ave., NW, #200
     Washington, D.C. 20015

     Dear Board of Trustees:

          I hereby tender my resignation as Trustee of HOME
     HEALTH SERVICES, effective at the close of the [sic]
     July 15, 1997.

                           /s/
               American Common Trust,
               Douglas Carpa, Trust Officer

          Notice of Acceptance of Resignation:

                           /s/
               Bob Hogue, Trustee

     The purported minutes, which are dated July 28, August 25,

September 27, October 27, November 24, and December 29, 1997, are

each one page long and contain a “Sign in Log” with various

signatures, including Robert Hogue’s purported signature.8



     8
        All six of these purported minutes are identical copies
of the same six purported minutes submitted to the Court by
Robert Hogue in numerous cases before this Court that were
dismissed on the ground that Robert Hogue was not a proper person
authorized to petition the Court on behalf of the trust. See
cases cited supra n.2.
                                  - 8 -

However, the purported minutes do not state the organization that

the minutes pertain to, nor do the purported minutes document

Douglas J. Carpa’s alleged notice of resignation, nor Robert

Hogue’s alleged appointment as the successor trustee for Home

Health, nor Robert Hogue’s or any trustee’s alleged authority to

amend the trust instrument.

     E.   Respondent’s Response

     At the Court’s direction, respondent filed a response to the

foregoing objection challenging the authenticity of the purported

trust instrument.   Respondent further contends that the objection

is identical to a previous objection filed by Robert Hogue in

Home Health Servs. Trust v. Commissioner, docket No. 9118-00,

which was dismissed for lack of jurisdiction.

     F.   Hearing on Respondent’s Motion

     This matter was called for hearing at the Court’s trial

session in San Francisco, California.     Counsel for respondent

appeared at the hearing and offered argument and evidence in

support of respondent’s motion to dismiss.

     Robert Hogue appeared pro se, purportedly on behalf of Home

Health.   The only evidence he offered was his naked assertion

that he is entitled to appear on behalf of Home Health because he

was appointed trustee on July 15, 1997.

     G.   Post-Hearing Memorandum Briefs

     A memorandum brief, which was signed by Robert Hogue, does
                               - 9 -

nothing more than repeat the same unsubstantiated and conclusory

allegations made in the petition and in the objection; i.e., that

Robert Hogue is the trustee for Home Health.

Discussion

     According to respondent, Home Health failed to show that

Robert Hogue is its duly appointed trustee.    Respondent asserts

that as a result, no valid petition has been filed and the Court

must dismiss this case for lack of jurisdiction.   We agree.

     It is well established that the taxpayer has the burden of

affirmatively establishing all facts giving rise to the Court’s

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); Natl. Comm. To Secure Justice v. Commissioner, 27 T.C.

837, 838-839 (1957).   Furthermore, unless the petition is filed

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

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.”

See Rule 23(a)(1).   Rule 60(c) states that the capacity of a

fiduciary or other representative to litigate in the Court “shall
                              - 10 -

be determined in accordance with the law of the jurisdiction from

which such person’s authority is derived.”

     Robert Hogue contends that he was appointed trustee for Home

Health in accordance with the trust instrument.   However, Robert

Hogue has failed to provide the Court with the documentary

evidence necessary to support his contention that he is vested

with authority to institute this action on behalf of Home Health

under the law of any relevant jurisdiction.

     We note that Robert Hogue is no stranger to this Court and

was recently involved in a strikingly similar matter before this

Court,9 Residential Mgmt. Servs. Trust v. Commissioner, T.C.

Memo. 2003-56, wherein Robert Hogue also claimed that he was

validly appointed as successor trustee by the resigning trustee,

Douglas J. Carpa.   In Residential Mgmt. Servs. Trust, Robert

Hogue submitted a purported trust instrument as proof of his

appointment that mirrors the trust instrument submitted in this

case except for the name of the trust.   The evidence in that case

showed that the purported trust instrument was not recorded in

its entirety and that Robert Hogue admitted that he personally



     9
        Robert Hogue has filed numerous petitions with the Court
on behalf of various so-called trusts. As is the case here,
those petitions were dismissed on the ground that they were not
filed by a proper party. See Residential Mgmt. Servs. Trust v.
Commissioner, T.C. Memo. 2003-56; Rancho Residential Servs. Trust
v. Commissioner, T.C. Memo. 2003-57; Sunshine Residential Trust
v. Commissioner, T.C. Memo. 2003-59 (and cases cited therein at
n.16).
                                - 11 -

changed the terms of the trust after his purported appointment as

successor trustee.    Significantly, the recordation information on

the purported trust instrument in Residential Mgmt. Servs. Trust

and the recordation information in the present case are in

numerical order.     Thus, it appears that the trust instrument here

was also not recorded in its entirety.     Furthermore, the

purported minutes, including the signatures, submitted in the

present case are identical to the minutes submitted in Sunshine

Residential Trust v. Commissioner, T.C. Memo. 2003-59, Rancho

Residential Servs. Trust v. Commissioner, T.C. Memo. 2003-57, and

Residential Mgmt. Servs. Trust.     Because none of the purported

minutes state the organization that they pertain to, it appears

that Robert Hogue simply copied the same purported minutes for

each case and submitted them as the Home Health minutes in the

present case.   Thus, the record creates doubt as to the

authenticity of the purported trust instrument in its entirety

and of its related documents.    “Paper records, no matter how

seemingly authentic, can be easily made to mask reality.”      Comer

Family Equity Pure Trust v. Commissioner, T.C. Memo. 1990-316,

affd. 958 F.2d 136 (6th Cir. 1992).      Because he provided only a

copy of a trust instrument without any certification as to its

authenticity other than his own uncorroborated and self-serving

assertions, we have serious doubts that Robert Hogue has

presented the Court with Home Health’s valid and complete trust
                                - 12 -

instrument.    See Residential Mgmt. Servs. Trust v. Commissioner,

supra.    Thus, we do not accept Robert Hogue’s unverified

testimony that he is the trustee for Home Health.

     Even assuming arguendo that the purported trust instrument

is authentic, Robert Hogue has still failed to establish that he

was appointed successor trustee for Home Health in accordance

with paragraph Eighth of the purported trust instrument.     That

paragraph provides, in pertinent part, that “A Successor-Trustee

may be appointed by the current Trustee or Trustees, a court of

competent jurisdiction, or by consensus with the and [sic]

Beneficiaries if the First Trustee resigns with 30 days

notice”.10    The record does not contain any evidence that the

resigning trustee provided 30 days’ notice.    At best, there is a

purported appointment document dated July 15, 1997, and a

questionable purported resignation letter wherein Douglas J.

Carpa purportedly provides notice of his resignation.    However,

the purported resignation letter is undated.    The evidence

suggests that the resignation letter was created on or about July

15, 1997.    The fact of the matter, however, is that Robert Hogue

purportedly in his capacity as “trustee” signed the resignation

letter accepting notice of Douglas J. Carpa’s resignation.

Similar to the case in Residential Mgmt. Servs. Trust v.


     10
        We need not and do not address whether Douglas J. Carpa
has such valid authority under the law of any relevant
jurisdiction.
                             - 13 -

Commissioner, supra, Robert Hogue’s purported actions relating to

Home Health predated his purported appointment as successor-

trustee.

     Accordingly, we hold that evidence necessary to support the

contention that Robert Hogue was vested with authority to

institute this action on behalf of Home Health is lacking.

Therefore, we shall dismiss this case for lack of jurisdiction

consistent with respondent’s motion.

     All of the arguments and contentions that have not been

analyzed herein have been considered but do not require any

further discussion.

     In order to give effect to the foregoing,

                                   An order of dismissal for

                              lack of jurisdiction will be

                              entered.
