T.C. Memo. 2000-276
UNITED STATES TAX COURT
AL TRUST, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 16059-99. Filed August 29, 2000.
Cheryl R. Frank and Gerald W. Kelly, for petitioner.1
Mary Ann Waters, for respondent.
MEMORANDUM OPINION
LARO, Judge: Respondent moves the Court to dismiss this
case for lack of jurisdiction, arguing that the petition was not
filed with the Court by a proper party as required by Rule
1
Ms. Frank and Mr. Kelly entered their appearance on July
17, 2000. Petitioner’s petition was filed with the Court by
petitioner’s managing director, David Jablonski (Mr. Jablonski).
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60(a).2 The petition was filed with the Court in the name of
petitioner by Mr. Jablonski, in his stated capacity as
petitioner’s managing director. Petitioner is purportedly an
irrevocable trust, the settlor of which is BHC Trust. Petitioner
petitioned the Court to redetermine respondent’s determination of
deficiencies of $5,352 and $9,263 in its Federal income tax for
1995 and 1996, respectively, accuracy-related penalties under
section 6662(a) of $1,070.40 and $1,852.60, respectively, and a
$1,070.40 addition to tax for 1995 under section 6651(a).
On June 27, 2000, we ordered petitioner to respond to
respondent’s motion by July 11, 2000, setting forth in its
response its position as to the motion and attaching any
pertinent documents in support of its position. We ordered
petitioner to list in its response the name of its trustee and a
list of its assets and liabilities as of the date of the
response. We ordered petitioner to attach to its response a copy
of the trust instrument(s) under which it has operated on or
after the date of the petition. We admonished petitioner that we
might dismiss its case if it did not comply fully with our order.
On July 17, 2000, petitioner filed its response with the
Court. The response attached a copy of a trust instrument for
2
Rule references are to the Tax Court Rules of Practice and
Procedure. Section references are to the Internal Revenue Code
in effect for the years in issue.
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petitioner dated April 28, 1995, but did not list either the name
of petitioner’s trustee or petitioner’s assets or liabilities as
of the date of the response. Nor did the response set forth
petitioner’s position as to respondent’s motion. Petitioner
prayed in the response that the Court give it until July 25,
2000, to comply with our Order. We granted petitioner’s prayer,
ordering it to file with the Court a supplement to its response
by July 26, 2000.3 Petitioner never filed such a supplement with
the Court, and it never requested a further extension of time in
order to do so. Respondent filed with the Court on August 2,
2000, a reply to petitioner’s response.
We must decide whether to grant respondent’s motion. We are
a legislatively created (Article I) Court, and, consequently, our
jurisdiction flows directly from Congress. See Freytag v.
Commissioner, 501 U.S. 868, 870 (1991); Neilson v. Commissioner,
94 T.C. 1, 9 (1990); Naftel v. Commissioner, 85 T.C. 527, 529
(1985); see also sec. 7442. Jurisdiction must be shown
affirmatively, and petitioner, as the party desiring to invoke
our jurisdiction, must establish affirmatively all facts giving
rise to our jurisdiction. See Fehrs v. Commissioner, 65 T.C.
346, 348 (1975); Wheeler's Peachtree Pharmacy, Inc. v.
3
In addition to our regular service of process, we
telephoned petitioner’s counsel on July 24, 2000, to inform them
of this extension.
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Commissioner, 35 T.C. 177, 180 (1960); National Comm. to Secure
Justice, Etc. v. Commissioner, 27 T.C. 837, 839 (1957).
Petitioner must establish that: (1) Respondent issued to it a
valid notice of deficiency, and (2) someone authorized to act on
its behalf filed with the Court a timely petition. See Rule
13(a), (c); Monge v. Commissioner, 93 T.C. 22, 27 (1989); Fehrs
v. Commissioner, supra at 348; National Comm. to Secure Justice,
Etc. v. Commissioner, supra at 839. See generally sec. 6213(a)
(a taxpayer such as petitioner must file with the Court a
petition for redetermination within 90 days from the date of the
notice of deficiency).
The fact that respondent issued to petitioner a valid notice
of deficiency is not in dispute. We focus on the second
requirement; i.e., a timely petition. Respondent issued the
notice of deficiency to petitioner on July 15, 1999. Thus, to
invoke our jurisdiction, petitioner had to cause a proper
petition to be filed with the Court on or before October 13,
1999. See sec. 6213(a). It is not enough that petitioner may
have simply caused to be forwarded to this Court within the
statutory period a petition for filing. In regard to a taxpayer
such as petitioner, a proper filing requires that the taxpayer
tendering (or causing to be tendered through an agent) a petition
to the Court for filing have the capacity to litigate in this
Court. See Rule 60(c); see also David Dung Le, M.D., Inc. v.
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Commissioner, 114 T.C. 268 (2000); Renaissance Enters. Trust v.
Commissioner, T.C. Memo. 2000-226.
Whether petitioner has the capacity to litigate in this
Court is determined by applicable State law, which, in this case,
appears to be the law of Virginia.4 See Rule 60(c). On the
basis of our review of that law and of the trust instrument, we
are unable to conclude that Mr. Jablonski, the only signatory on
the petition, had the requisite capacity to petition this Court
on petitioner’s behalf. Accord Mendenhall v. Douglas L. Cooper,
Inc., 387 S.E.2d 468 (Va. 1990); Raney v. Four Thirty Seven Land
Co., 357 S.E.2d 733, 736 (Va. 1987); Fisher v. Dickenson, 4 S.E.
737 (Va. 1888); cf. Walt Robbins, Inc. v. Damon Corp., 348 S.E.2d
223, 226 (Va. 1986) (the trustee of an antecedent deed of trust
is a necessary party in a suit to enforce a mechanic's lien).
Petitioner is purportedly an irrevocable trust, and Mr. Jablonski
is not petitioner’s trustee;5 Mr. Jablonski is listed on the
petition, but not in the trust instrument, as petitioner’s so-
called managing director. The trust instrument does not define
4
In addition to the fact that petitioner’s mailing address
is in Alexandria, Virginia, the trust instrument was executed in
that city.
5
The record does contain a letter dated Mar. 24, 2000, from
Mr. Jablonski to respondent’s counsel, that Mr. Jablonski signed
as “Trusttee” (sic). However, the trust instrument does not name
Mr. Jablonski as trustee. The record as a whole does not support
a finding that Mr. Jablonski is petitioner’s trustee.
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the term “managing director”, and it does not set forth the
powers, duties, or responsibilities of a person who holds that
title.6 Nor is petitioner’s trustee a party to this proceeding.
According to the trust instrument, petitioner’s cotrustees are
Ron Honeycutt and Jerald Tobin, and the petition that was filed
with the Court by Mr. Jablonski makes no reference to either of
those two.
Petitioner has left us unpersuaded that we have jurisdiction
over its case. Thus, we shall grant respondent’s motion to
dismiss this case for lack of jurisdiction.7 See YMO Trust v.
Commissioner, T.C. Memo. 2000-275; BHC Trust v. Commissioner,
T.C. Memo. 2000-274; Malvern Hills Trust v. Commissioner, T.C.
6
By contrast, the trust instrument provides explicitly that
“THE TRUSTEES shall hold all property of the Trust Organization
as joint tenants in fee simple and shall comprise the Board of
Trustees for conducting the affairs of the Trust Organization.”
The trust instrument provides further that “THE TRUSTEES shall
hold office and exercise collectively the control of the Trust
Organization property and affairs. All major actions and
decisions * * * on the part of the Trust Organization shall be
made by the Trustees acting unanimously”.
7
Petitioner has also failed to persuade us that it actually
existed on the date of the petition. We lack jurisdiction when a
petitioning trust is a nonexisting entity, and such is the case
where a trust lacks a corpus. See Patz v. Commissioner, 69 T.C.
497, 501 (1977). The record leads us to believe that petitioner
has no corpus.
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Memo. 2000-273; PM Trust v. Commissioner, T.C. Memo. 2000-272;8
cf. Renaissance Enters. Trust v. Commissioner, supra.
To reflect the foregoing,
An appropriate order of
dismissal for lack of
jurisdiction will be entered.
8
We have decided the same issue adverse to the trusts in
the cases of BHC Trust, Malvern Hills Trust, PM Trust, and YMO
Trust. Mr. Jablonski also petitioned the Court on behalf of each
of those trusts, and the records in those cases were virtually
identical to the record at hand.