                           T.C. Memo. 2003-8



                      UNITED STATES TAX COURT



      BELLA VISTA CHIROPRACTIC TRUST, ROBERT HOGUE, TRUSTEE,
   Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 3296-02.                 Filed January 8, 2003.


     Jeremy L. McPherson and Melinda G. Williams, 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, as

supplemented.    Respondent maintains that the petition was not

filed by a trustee authorized to bring suit on behalf of Bella

Vista Chiropractic Trust (Bella Vista).2     Bella Vista 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 Bella Vista

determining deficiencies in its Federal income taxes and

accuracy-related penalties under section 6662(a) as follows:


          Year     Deficiency       Accuracy-related Penalty
          1997       $89,261               $17,852
          1998       106,028                21,206


The deficiencies in income taxes are based on the disallowance of

deductions claimed by Bella Vista on Schedules C, Profit or Loss

From Business.    In this regard, respondent determined that the

deductions:



     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 -

     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.   The

petition was signed by Robert Hogue as Bella Vista’s purported

“trustee”.

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

which Bella Vista 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 4549-A, 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.
                               - 4 -

     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

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 Bella Vista 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 Bella

Vista’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 Bella Vista was to file any objection to

respondent’s motion to dismiss, as supplemented.

     D.   Bella Vista’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
                               - 5 -

     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.

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 Bella Vista Chiropractic Clinic Trust.4   This

instrument states that the trust shall have at least two

trustees.   Although the instrument identifies a Michael Welch and

an Edmond A. Salera as the trustees, only Michael Welch

purportedly executed the document accepting his appointment as a

trustee; in contrast, there is nothing in the document (or

otherwise in the record) demonstrating that Edmond A. Salera

purported to accept his appointment as a trustee.




     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.
     4
        The record indicates that Bella Vista Chiropractic Clinic
Trust and Bella Vista Chiropractic Trust are one and the same.
                                   - 6 -

     The second purported trust instrument is dated January 13,

1997, and it identifies a Carol Ruthenberg as the “creator” (or

“sovereign creator”) of Bella Vista Chiropractic Trust and Robert

Hogue as “legal trustee” (or “sovereign trustee”).

Notwithstanding its date of January 13, 1997, the instrument

identifies as an “article of personal property” subject to the

trust “One 2000 Honda Accord Lic# 4kmx 255" (Emphasis added).

The instrument also states that there need not be more than one

trustee.

     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 Bella Vista Chiropractic Trust for 1997 and 1998.    These

returns, which were executed by Robert Hogue on October 7, 1998,

and October 15, 1999, respectively, list the date the entity was

created as January 1, 1994.

     F.    Bella Vista’s Failure To Reply

     After considering respondent’s Response and Declaration, the

Court directed Bella Vista to file a reply.    Bella Vista failed
                               - 7 -

to do so.

     G.   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, 2002 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 Bella Vista at either hearing, nor

did Bella Vista file any written statement pursuant to Rule

50(c).

Discussion

     According to respondent, Bella Vista 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).

Furthermore, unless the petition is filed by the taxpayer, or by

someone lawfully authorized to act on the taxpayer's behalf, we
                                - 8 -

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, Bella Vista 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

Bella Vista, the record in this case is, at best, muddled.

       As previously discussed, Bella Vista 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” and a Michael Welch and an Edmond A. Salera as

trustees.    The second document, dated January 13, 1997,
                               - 9 -

identifies a “Carol Ruthenberg” as “creator” and Robert Hogue as

trustee.   Significantly, Bella Vista 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.

     In the absence of any persuasive basis for concluding that

Robert Hogue was duly appointed as the trustee of Bella Vista, we

shall dismiss this case for lack of jurisdiction consistent with

respondent’s motion, as supplemented.5


     5
        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 they were not filed
by a proper party. See Remedios Chiropractic Clinic Trust,
Robert Hogue, Legal Tr., docket No. 11070-01; JREP Trust, Robert
Hogue, Tr. v. Commissioner, docket No. 9795-01L; PERJ Trust,
Robert Hogue, Tr. v. Commissioner, docket No. 9794-01L; R&R
Trust, Robert Hogue, Tr. v. Commissioner, docket No. 7379-01S;
Family Chiropractic Trust, Robert Hogue, Tr. v. Commissioner,
docket No. 7378-01; PERJ Trust, Robert Hogue, Tr. v.
Commissioner, docket No. 6727-01; JREP Trust, Robert Hogue, Tr.
v. Commissioner, docket No. 6726-01; MARFRAN Trust, Robert Hogue,
Legal Tr. v. Commissioner, docket No. 12427-00S; Remedios
Chiropractic Clinic Trust, Robert Hogue, Legal Tr. v.
Commissioner, docket No. 12426-00; BLR-SLR Trust, Robert Hogue,
Legal Tr. v. Commissioner, docket No. 12425-00S; Rancho
Residential Facility Trust, Robert Hogue, Tr. v. Commissioner,
docket No. 9120-00; Residential Mgmt. Servs. Trust, Robert Hogue,
Tr. v. Commissioner, docket No. 9119-00; Home Health Servs.
Trust, Robert Hogue, Tr. v. Commissioner, docket No. 9118-00;
Sunshine Trust, Robert Hogue, Tr. v. Commissioner, docket No.
9117-00; Residential Mgmt. Servs. Trust, Robert Hogue, Tr. v.
                                                   (continued...)
                             - 10 -

     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 appropriate order will be

                              entered.




     5
      (...continued)
Commissioner, docket No. 10400-99, filed as   T.C. Memo. 2001-297.
