T.C. Memo. 2000-226
UNITED STATES TAX COURT
RENAISSANCE ENTERPRISES TRUST, JOHN P. WILDE, TRUSTEE &
EDUCATIONAL ENTERPRISES TRUST, JOHN P. WILDE, TRUSTEE,
Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 17868-99. 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 years in issue, and
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all Rule references are to the Tax Court Rules of Practice and
Procedure.
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 Stein & Stein as the trustee, 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
Stein & Stein 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
1
References to “petitioners” are to Renaissance
Enterprises Trust and Educational Enterprises Trust.
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that pursuant to Rule 60, Mr. Wilde is not the proper party to
bring this action.
On March 3, 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 documents both entitled
“Minute–-Stern & Stein L.L.C.” (the minutes).2 The minutes are
identical and 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.
Cliff Jennewin and Richard Scarborough signed the minutes on
behalf of Stern & Stein. 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
2
We believe that the entities referred to as “Stein &
Stein” and “Stern & Stein” are one in the same.
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point, this court is without jurisdiction to examine
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
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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. At the hearing, when asked why he
had not produced the documents, Mr. Wilde remarked: “Why should
we offer [respondent] the benefit of our volunteering [the trust
documents] when respondent and respondent’s counsel repeatedly
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berate us.” Petitioners submitted only the minutes as evidence.3
Without the trust documents and/or other evidence, we are
not persuaded that Mr. Wilde has the required capacity to file a
petition on behalf of petitioners in this Court. Petitioners
have failed to establish that the minutes submitted are what they
purport to be (i.e., the resignation of Stein & Stein as trustee
and the appointment of Mr. Wilde as successor trustee). We have
no way to determine whether: (1) Stein & Stein was the original
trustee or was, at any time, a trustee; (2) Stein & Stein 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.
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.4 We therefore shall grant
3
At the hearing, petitioners attempted to introduce two
incomplete documents regarding the trust which were not accepted
into evidence.
4
We note that Mr. Wilde is no stranger to this Court.
Recently, he 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 the 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
(continued...)
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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.
4
(...continued)
(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).