                      T.C. Summary Opinion 2003-3



                        UNITED STATES TAX COURT



    ACME EQUIPMENT TRUST, ROBERT HOGUE, TRUSTEE, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 3294-02S.                Filed January 14, 2003.


     Jeremy L. McPherson and Melinda G. Williams, for respondent.



     ARMEN, Special Trial Judge:     This case was heard pursuant to

the provisions of section 7463.1    The decision to be entered is

not reviewable by any other court, and this opinion should not be

cited as authority.




     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.
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     This matter is before the Court on respondent’s motion to

dismiss for lack of jurisdiction, as supplemented.     Respondent

maintains that the petition was not filed by a trustee authorized

to bring suit on behalf of Acme Equipment Trust (Acme).2       Acme

opposes respondent’s motion to dismiss.     As discussed in detail

below, we shall grant respondent’s motion, as supplemented, and

dismiss this case for lack of jurisdiction.

Background

     A.    Notice of Deficiency

     Respondent issued a notice of deficiency to Acme determining

deficiencies in its Federal income taxes and accuracy-related

penalties under section 6662(a) as follows:

          Year     Deficiency       Accuracy-related Penalty
          1997      $3,025                 $605
          1998       2,432                  486

The deficiencies in income taxes are based on the disallowance of

deductions claimed by Acme on Schedules 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.



     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 -

     B.    Petition

     The Court subsequently received and filed a petition for

redetermination challenging the notice of deficiency.   The

petition was signed by Robert Hogue as Acme’s purported

“trustee”.

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

which Acme challenges the notice of deficiency, alleges as

follows:

     (1) The District Director issued a Statutory Notice of
     Deficiency claiming petitioner had a tax liability
     without there being a statutorily procedural correct
     lawful tax assessment. (2) Attached to the Notice of
     Deficiency, IRS Form 4549A, income tax examination
     changes, line 11 states, “Total Corrected Tax
     Liability.” Respondent has failed to provide the
     petitioners [sic] with the internal revenue code
     section or regulation that was used to calculate this
     total corrected tax liability. (3) The respondent has
     failed to provide the petitioners [sic] with certified
     assessment information as per Internal Revenue
     Regulation 301.6203-1. (4) Respondent has failed to
     identify the individual who will certify to the tax
     adjustments the determination was based on. Therefore,
     the deficiency is unenforceable as the determination
     was based on unfounded evidence. (5) There can be no
     meaningful administrative hearing until respondent
     provides petitioner with the above requested
     information, and until that time, petitioner will
     disagree with all of the alleged Tax Liability.
     (6) There has been no meaningful examination of books
     and records therefore we believe this is a Naked
     Assessment.

     C.    Respondent’s Motion and Supplement

     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
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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 Acme to file an objection, if any, to

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

its objection a copy of the trust instrument or other

documentation showing that the petition was filed on behalf of a

fiduciary legally entitled to institute a case on Acme’s behalf.

     Shortly after the issuance of the foregoing Order,

respondent filed a Supplement to respondent’s motion to dismiss,

attaching thereto copies of certain documents that respondent had

just received from Robert Hogue.   The Court then extended the

time within which Acme was to file any objection to respondent’s

motion to dismiss, as supplemented.

     D.   Acme’s Objection

     Ultimately, the Court received an Objection, leave for the

filing of which was granted, to respondent’s motion to dismiss,

as supplemented.   The Objection, which was signed by Robert

Hogue, has as its core thesis that this case should be:

     dismissed for lack of Subject Matter Jurisdiction on
     the grounds that the Notice of Deficiency issued by
     respondent was issued on heresay [sic] 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.
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The Objection also states that Robert Hogue has authority to

represent the trust in this matter.

     Attached to the Objection are copies of two purported trust

instruments.   The first purported trust instrument is dated

January 1, 1994, and it identifies E.E. Salera D.C. as the

“creator”3 of Acme Equipment Trust.     This instrument states that

the trust shall have at least two trustees, and it identifies a

Michael Welch and a Carol Ruthenberg as the trustees.     The

“creator” of the trust purports to “select and appoint” Michael

Welch as “the trustee”; Michael Welch then purports to “select

and appoint” Carol Ruthenberg as “the trustee”, a power that

Welch does not appear to have under the instrument.     In addition,

although the instrument refers to Schedules “A” through “D” that

“are made a part hereof”, no such schedules are attached to, or

otherwise a part of, the instrument.

     The second purported trust instrument is dated January 13,

1997, and it identifies a Carol Ruthenberg (also identified as

Carol Ruthenburg) as the “creator” (or “sovereign creator”) of

Acme Equipment Trust and Robert Hogue as “legal trustee” (or

“sovereign trustee”).   The instrument also states that there need

not be more than one trustee.   Although the instrument refers to



     3
        E.E. Salera, also known as Edmond E. Salera, has a case
pending before the Court assigned docket No. 3051-02. It appears
that the letters “D.C.” following his name in the purported trust
instrument are an abbreviation for doctor of chiropractic.
                                  - 6 -

an attached Exhibit “A” enumerating “articles of personal

property” subject to the trust, no such exhibit is attached.

     Both purported trust instruments represent that they were

executed within the State of California and that California State

law is controlling.

     E.   Respondent’s Response

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

foregoing Objection.   Simultaneously respondent filed a

Declaration, attaching thereto (inter alia) copies of Forms 1041,

U.S. Income Tax Return for Estates and Trusts, filed in the name

of Acme Equipment Trust for 1997 and 1998.      These returns, which

were executed by Robert Hogue on October 7, and October 15, 1999,

respectively, list the date the entity was created as January 1,

1994, and its employer identification number as XX-XXXXXXX.

     F.   Acme’s Failure To Reply

     After considering respondent’s Response and Declaration, the

Court directed Acme to file a reply.      Acme failed to do so.

     G.   Other Noteworthy Documents

     As previously mentioned, respondent attached to the

Supplement to his motion to dismiss copies of certain documents

that he had just received from Robert Hogue.      See supra C.

Although none of these documents included a purported trust

instrument, the documents did include various “Minutes” for “Acme
                               - 7 -

Trust, Federal Tax Identification Number XX-XXXXXXX",4 as well as

certain, partially completed bank documents bearing the same tax

identification number.   To the extent that these “Minutes” and

bank documents bear a date, they all purport to be dated May 1,

1997.

     Among the foregoing “Minutes” is one entitled “First Minutes

of the Acme Trust”.   This document references a Robin Morgan,

“creator” of the trust, who purports to appoint Robert Hogue as

“legal trustee”.

     In the “Second Minutes of the Acme Trust”, Robert Hogue

purports to appoint Carol Ruthenberg as “substitute trustee/legal

agent”.5

     In yet another “Minutes”, Michael Welch and Carol

Ruthenberg, identified as “old trustees”, purport to appoint

Robert Hogue as “new trustee”; Welch and Ruthenberg then purport

to resign as trustees.   Also noteworthy is the fact that the

purported signature of “Carol Ruthenberg” on these “Minutes” does

not resemble the purported signature of “Carol Ruthenberg” on the

January 13, 1997, trust instrument discussed above.


     4
        We regard “Acme Trust” and “Acme Equipment Trust” as one
and the same.
     5
        Although the “Second Minutes” are not dated, the “First
Minutes”, “Third Minutes”, “Fourth Minutes”, “Fifth Minutes”, and
“Sixth Minutes” are all dated May 1, 1997.
     Also, we note that the various “Minutes” are followed by an
undated document entitled “Resignation From the Acme Trust” that
is executed by Robert Hogue.
                                - 8 -

     Among the partially completed bank documents is a “trustee

certification” for Acme Equipment Trust.    This document

identifies the settlor of the trust as a Robin Morgan and the

trustee as Robert Hogue.

     H.   Hearings on Respondent’s Motion

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

sessions held in Washington, D.C., on September 25 and October

23, 2002.    Counsel for respondent appeared at the hearings and

offered argument and evidence in support of respondent’s motion

to dismiss, as supplemented.    There was no appearance by or on

behalf of Acme at either hearing, nor did Acme file any written

statement pursuant to Rule 50(c).

Discussion

     According to respondent, Acme 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 settled that the taxpayer has the burden of

proving the Court’s jurisdiction by affirmatively establishing

all facts giving rise to our 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).
                                - 9 -

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)(1) 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."

Rule 60(c) states that 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.”    The record shows that California

State law is controlling in this case.

       Under California law, a trustee is authorized to commence

litigation on behalf of a trust.    Cal. Prob. Code sec. 16249

(West Supp. 2002).    However, Acme has failed to provide the Court

with the documentary evidence necessary to support its contention

that Robert Hogue was vested with authority to institute this

action on its behalf.    As it pertains to the question of Robert

Hogue’s status as a duly appointed trustee of Acme, the record in

this case is, at best, muddled.

       As previously discussed, Acme presented the Court with two

versions of the purported trust instrument.    The first document,

dated January 1, 1994, identifies E.E. Salera D.C. as “creator”
                              - 10 -

and a Michael Welch and a Carol Ruthenberg as trustees.   The

second document, dated January 13, 1997, identifies a Carol

Ruthenberg as “creator” and Robert Hogue as trustee.

Significantly, Acme made no attempt to explain the patent

discrepancies in the two purported trust documents-–particularly

the change in identity of the trust “creator” and the change in

identity of the trustees.   We note further that although the 1994

version of the trust instrument required a minimum of two

trustees, the 1997 version required only one trustee.

     As if the foregoing were not sufficiently confusing, yet

another purported settlor of Acme, a Robin Morgan, is identified

in “First Minutes” received by respondent from Robert Hogue.

Other “Minutes”, described supra G. of the Background section of

this opinion, muddle the matter further.

     In the absence of any persuasive basis for concluding that

Robert Hogue was duly appointed as the trustee of Acme, we shall

dismiss this case for lack of jurisdiction consistent with

respondent’s motion, as supplemented.   See Bella Vista

Chiropractic Trust v. Commissioner, T.C. Memo. 2003-8.

     All of the arguments and contentions that have not been

analyzed herein have been considered, but they do not require any

further discussion.
                        - 11 -

In order to give effect to the foregoing,

                         An appropriate order will be

                    entered.
