                         T.C. Memo. 2000-227



                       UNITED STATES TAX COURT



        TROY ENTERPRISES TRUST, JOHN P. WILDE, TRUSTEE &
         YALE ENTERPRISES TRUST, JOHN P. WILDE, TRUSTEE,
                  Petitioners v. COMMISSIONER OF
                   INTERNAL REVENUE, Respondent



     Docket No. 17893-99.                        Filed July 28, 2000.


     John P. Wilde, for petitioners.

     John W. Duncan, for respondent.



                         MEMORANDUM OPINION


     VASQUEZ, Judge:    This case is before the Court on

respondent’s motion to dismiss for lack of jurisdiction.

     Unless otherwise indicated, all section references are to

the Internal Revenue Code in effect for the year in issue, and

all Rule references are to the Tax Court Rules of Practice and

Procedure.
                                - 2 -

Background

     Petitioners1 are trusts organized under the laws of Arizona.

On September 9, 1996, each petitioner filed a 1995 U.S. Income

Tax Return for Estates and Trusts (collectively, the returns).

The returns listed Morgan, Kramer & Strauss, LLC (Morgan,

Kramer), as the fiduciary, and Cliff Jennewin signed the returns

as the “trustee agent”.

     Upon commencement of the examinations of the returns,

respondent requested complete copies of the trust documents from

petitioners.    Petitioners failed to provide any trust documents

and to cooperate in any way during the examinations.

     On September 1, 1999, respondent issued separate notices of

deficiency to petitioners.    The notices of deficiency identified

Morgan, Kramer as trustee of both trusts.

     On November 29, 1999, petitioners filed a joint petition in

this Court.    John P. Wilde (Mr. Wilde) signed the petition on

behalf of petitioners, wherein he identified himself as

“trustee”.

     On January 27, 2000, respondent filed a motion to dismiss

for lack of jurisdiction (respondent’s motion) on the grounds

that pursuant to Rule 60, Mr. Wilde is not the proper party to

bring this action.



     1
        References to “petitioners” are to Troy Enterprises Trust
and Yale Enterprises Trust.
                                - 3 -

     On February 22, 2000, petitioners filed a joint response to

respondent’s motion (petitioners’ response).   In petitioners’

response, petitioners argue that Mr. Wilde is their trustee and

thus, the proper party to bring this action.   In support of their

contention, petitioners attached two identical documents entitled

“Minute–-Morgan, Kramer & Strauss L.L.C.” (the minutes). The

minutes provide, in relevant part:

          A special meeting of the members has been called
     for the purpose of amending the purpose and operation
     of the L.L.C.

            *   *     *     *      *     *      *

          It is hereby resolved that it is in the best
     interest of all parties concerned to replace the
     trustee on all trusts where the LLC is named. To this
     end and in fulfilling the requirements for succession
     John P. Wilde and Jimmy Chisum have been selected as
     successors.

          By agreement the appointment of Wilde and Chisum
     and the withdrawal of Stern and Stein are simultaneous
     and signatures hereto signify a full and total change
     in trusteeship, responsibility, custody and ownership
     of corpus, papers, and all legal affairs (emphasis
     added).

Cliff Jennewin and Richard Scarborough signed the minutes on

behalf of Morgan, Kramer.   Mr. Wilde and Jimmy Chisum also signed

the minutes to signify that they accepted the appointment as

trustees.

     In petitioners’ response, they further argue:

     the issue concerning Mr. Wilde’s capacity as Trustee
     falls within the exclusive jurisdiction of the superior
     court here in the State of Arizona. * * * At this
     point, this court is without jurisdiction to examine
                               - 4 -

     the matter beyond the minute appointing Mr. Wilde as
     trustee and determine whether he is the duly authorized
     Trustee. In absence of evidence to the contrary the
     appointment of John P. Wilde as a Trustee, in the
     minutes * * * is presumptively valid unless some
     provision of Arizona Law or a court of competent
     jurisdiction under the laws of the State of Arizona
     have found that the appointment to be invalid. The
     Petitioner need not remind the Court of the
     consequences of taking any action over which subject
     matter is completely lacking.

     On June 5, 2000, we held a hearing on respondent’s motion

wherein Mr. Wilde appeared on behalf of petitioners.

Discussion

     This Court is a court of limited jurisdiction.    See Freytag

v. Commissioner, 501 U.S. 868, 870 (1991).    Jurisdiction is

predicated upon the timely filing of a petition by the proper

party.   See secs. 6213 and 6214; Vincent Engg. Co. v.

Commissioner, T.C. Memo. 1993-435.

     In accordance with Rule 60, a petition may be filed 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 60(a)(1).   The capacity of a fiduciary to

litigate in this Court shall be determined in accordance with the

law of the jurisdiction from which such person’s authority is

derived.   See Rule 60(c).

     Petitioners are trusts organized under the laws of Arizona.

Pursuant to Rule 60(c), Arizona law therefore applies in
                                - 5 -

determining the capacity of Mr. Wilde to petition this Court.

Under Arizona law, a trustee has the capacity to institute court

proceedings on behalf of a trust and is thus the proper party to

file a petition on behalf of a trust in this Court.   See Ariz.

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

     Petitioners bear the burden of proving that this Court has

jurisdiction by establishing affirmatively all facts giving rise

to our jurisdiction.    See Patz 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); National Comm. to Secure Justice v. Commissioner, 27 T.C.

837, 839 (1957); Consolidated Cos. v. Commissioner, 15 B.T.A.

645, 651 (1929).   In order to meet that burden, petitioners must

provide evidence establishing that Mr. Wilde has authority to act

on their behalf.   See National Comm. to Secure Justice v.

Commissioner, supra at 839-840; Coca-Cola Bottling Co. v.

Commissioner, 22 B.T.A. 686, 700 (1931).

     Petitioners refuse to provide the trust documents to

respondent and to the Court.   Petitioners submitted only the

minutes as evidence.2   The minutes purport to be the minutes of

Morgan, Kramer & Strauss L.L.C.   Within the minutes, however,

there is a reference to “Stern & Stein” which implies that the


     2
        At the hearing, petitioners attempted to introduce into
evidence two incomplete documents regarding the trust which were
not accepted.
                               - 6 -

minutes are documenting the withdrawal of Stern & Stein as

trustee and not the withdrawal of Morgan, Kramer as trustee.    We

note that Mr. Wilde was recently involved in another matter

before this Court, Renaissance Enters. Trust v. Commissioner,

T.C. Memo. 2000-226, wherein Mr. Wilde claimed that he was

appointed trustee by the resigning trustee, Stern & Stein.    In

Renaissance, Mr. Wilde submitted minutes from Stern & Stein as

proof of his appointment which mirror the minutes submitted in

this case except for the title on the top of the document.    It

appears that Mr. Wilde simply copied the minutes submitted in

Renaissance and submitted them as Morgan, Kramer’s minutes in the

present case.   We are not persuaded of the authenticity of the

minutes.

     Petitioners have failed to establish that the minutes

submitted are in fact the minutes of Morgan, Kramer, that they

document Morgan, Kramer’s resignation as trustee and that they

show that Mr. Wilde was subsequently appointed trustee.   We have

no way to determine whether:   (1) Morgan, Kramer was the original

trustee or was, at any time, a trustee; (2) Morgan, Kramer had

the legal authority to name Mr. Wilde the successor trustee; and

(3) the requirements of the trust for appointing a successor

trustee were followed in appointing Mr. Wilde.   Without the trust

documents and/or other reliable evidence, we are not satisfied

that Mr. Wilde has the required capacity to file a petition on
                                 - 7 -

behalf of petitioners in this Court.

     In view of the evidentiary shortcomings in the record, we

cannot conclude that Mr. Wilde has the requisite capacity to file

a petition on behalf of petitioners.3       We therefore shall grant

respondent’s motion.

     To the extent not herein discussed, we have considered

petitioners’ other arguments and consider them to be without

merit.

     To reflect the foregoing,

                                         An appropriate order of

                                 dismissal will be entered.




     3
        We note that Mr. Wilde is no stranger to this Court.
Recently, in addition to the petition in Renaissance Enters.
Trust v. Commissioner, T.C. Memo. 2000-226, mentioned earlier,
Mr. Wilde filed petitions in Scenic Wonders Gallery, LLC v.
Commissioner, T.C. Memo. 2000-64, and Photo Art Mktg. Trust v.
Commissioner, T.C. Memo. 2000-65. In those cases, we granted the
Commissioner’s motions to dismiss for lack of jurisdiction on the
ground that Mr. Wilde lacked the requisite capacity to file
petitions on behalf of those taxpayers.
     Additionally, Jimmy C. Chisum, who is listed as cotrustee in
the minutes submitted by petitioners in the instant case, has
filed petitions in at least three similar cases where motions to
dismiss for lack of jurisdiction were granted on similar grounds.
See Banana Moon Trust v. Commissioner, T.C. Memo. 2000-73
(holding Mr. Chisum did not have the requisite capacity to file a
petition on behalf of the taxpayers); Jeff Burger Prods., LLC v.
Commissioner, T.C. Memo. 2000-72 (similar holding); Bantam
Domestic Trust v. Commissioner, T.C. Memo. 2000-63 (similar
holding).
