T.C. Memo. 2003-58
UNITED STATES TAX COURT
HOME HEALTH SERVICES TRUST, ROBERT HOGUE, TRUSTEE,
Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 2212-02. Filed March 3, 2003.
Robert Hogue, pro se.
Jeremy L. McPherson, 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.
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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.2
Respondent maintains that the petition was not filed by a trustee
authorized to bring suit on behalf of Home Health Services Trust
(Home Health).3 As discussed in detail below, we shall grant
respondent’s motion and dismiss this case for lack of
jurisdiction.
Background
A. Notice of Deficiency
Respondent issued a notice of deficiency to Home Health
determining a deficiency in, an addition to, and a penalty on its
Federal income tax as follows:
Accuracy-Related
Addition To Tax Penalty
Year Deficiency Sec. 6651(a)(1) Sec. 6662(a)
1997 $137,942 $27,588 $27,588
2
This case was consolidated for hearing with three related
cases in which Robert Hogue also filed petitions purportedly as
“trustee” on behalf of various so-called trusts. See Residential
Mgmt. Servs. Trust v. Commissioner, T.C. Memo. 2003-56; Rancho
Residential Servs. Trust v. Commissioner, T.C. Memo. 2003-57;
Sunshine Residential Trust v. Commissioner, T.C. Memo. 2003-59.
3
Use of the terms “trust” and “trustee” (and their
derivatives) is intended for narrative convenience only. Thus,
no inference should be drawn from our use of such terms regarding
any legal status or relationship.
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The deficiency in income tax is based on the disallowance of
deductions claimed by Home Health on Schedule 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.
B. Petition
The Court subsequently received and filed a petition for
redetermination challenging the notice of deficiency.4 The
petition was signed by Robert Hogue as Home Health’s purported
“trustee”.
Paragraph 4 of the petition, which sets forth the bases on
which the notice of deficiency is challenged, alleges as follows:
(1) The Statutory Notice of Deficiency was issued to
petitioner claiming petitioner had unreported income.
Petitioner denies having any unreported income. (2)
Attached to the Notice of Deficiency, IRS Form 4549-A,
income tax examination changes, line 9 states, “Total
Corrected Tax Liability.” Petitioner denies having a
tax liability. (3) Respondent has failed to provide
the petitioners [sic] with the USC Title 26 taxing
statute that applies. (4) Respondent has failed to
provide the petitioners [sic] with certified assessment
information as per Internal Revenue Regulation
301.6203-1. (5) Respondent has failed to identify the
individual who will certify to the tax adjustments the
determination was based on. (6) Petitioner claims, the
Notice of Deficiency, the claimed tax liability, and
4
Home Health’s principal place of business was in
California at the time that the petition was filed with the
Court.
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the claimed unreported income, are all based on
unfounded and hearsay evidence[;] no examination of
books and records has been done so we are presuming
this is a naked assessment. (7) There can be no
meaningful administrative hearing until respondent
provides petitioner with certified evidence to support
the Notice of Deficiency and the claimed tax liability.
C. Respondent’s Motion
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 Home Health to file an objection, if
any, to respondent’s motion, taking into account Rule 60, and to
attach to the objection a copy of the trust instrument or other
documentation showing that the petition was filed by a fiduciary
legally entitled to institute a case on behalf of Home Health.
The Court subsequently extended the time within which objection
was to be filed.
D. Robert Hogue’s Objection
Ultimately, the Court received an objection, which was
signed by Robert Hogue, to respondent’s motion to dismiss.
Paragraph 5 of the objection states:
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ROBERT HOGUE presented a Trust instrument for the court
which is a Contractual Contract Trust based on common
law & the United States Constitution, Article One,
Section 10., MR. HOGUE also presented notarized
documentation to the court to show his acceptance of
Trusteeship. As well as further documentation such as
form 56, Fiduciary Signature card showing Robert Hogue
as wet signature on bank account. At best this site is
frivolous and without merit. The court is trying to
mislead the petitioner in this court action. ROBERT
HOGUE is the only person who can represent the trust.
His description as Trustee for Home Health is well
established in his everyday work as Trustee.
Attached to the objection are copies of, inter alia, a
purported trust instrument dated May 24, 1994 (trust instrument),
a document entitled “Trustee Resignation/Appointment of
Successor-Trustee” executed on July 15, 1997, wherein a Douglas
J. Carpa, “trustee”, purportedly appoints Robert Hogue as the
successor trustee for Home Health (appointment document),5 an
undated document entitled “Letter of Resignation” (resignation
letter), documents entitled “Monthly Management Meeting”
5
The same trust instrument and appointment document were
both submitted to the Court by Robert Hogue in Home Health Servs.
Trust v. Commissioner, docket No. 9118-00, involving the 1996 tax
year, which was dismissed on the ground that Robert Hogue was not
a proper person authorized to petition the Court on behalf of the
trust. Likewise, with the exception of the name of the so-called
trust, the appointment document is identical to the appointment
document submitted to the Court by Robert Hogue in numerous cases
before this Court that were dismissed on the ground that Robert
Hogue was not a proper person authorized to petition the Court on
behalf of the “trust”. See Rancho Residential Facility Trust v.
Commissioner, docket No. 9120-00; Residential Mgmt. Servs. Trust
v. Commissioner, docket No. 9119-00 (involving the 1996 tax
year); Home Health Servs. Trust v. Commissioner, docket No. 9118-
00; Sunshine Trust v. Commissioner, docket No. 9117-00;
Residential Mgmt. Servs. Trust v. Commissioner, T.C. Memo. 2001-
297 (involving the 1995 tax year); cases cited supra n.2.
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(purported minutes), and a provision of the Revised Statutes of
Nova Scotia, Canada.6
The trust instrument is identical to the altered trust
instrument submitted to the Court by Robert Hogue in Residential
Mgmt. Servs. Trust v. Commissioner, T.C. Memo. 2003-56, including
the execution of the trust instrument before a notary public on
May 24, 1994, except for the name of the trust and the
recordation information stamped on the unnumbered cover page.
The recordation information stamped on the unnumbered cover page
of the trust instrument states as follows:7
OFFICIAL RECORDS OF
MARICOPA COUNTY [AZ] RECORDER
HELEN PURCELL
XX-XXXXXXX 05/25/94 10:25
LILIAN 3 of 3
In fact, the recordation information on the trust instrument is
in numerical order with the recordation information on the
altered trust instrument submitted to the Court in Residential
Mgmt. Servs. Trust, which states:
6
Specifically, Robert Hogue attached Nova Scotia’s
“Trustee Act, Chapter 479 of the Revised Statutes, 1989 amended
1992, c. 8, s. 37; 1994-95, c. 19", which has no relevance to the
present case. See Residential Mgmt. Servs. Trust v.
Commissioner, T.C. Memo. 2001-297.
7
We note that the record reflects that only the unnumbered
cover page of the trust instrument was purportedly recorded with
the Maricopa County Recorder in Arizona.
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OFFICIAL RECORDS OF
MARICOPA COUNTY [AZ] RECORDER
HELEN PURCELL
XX-XXXXXXX 05/25/94 10:25
LILIAN 2 of 3
The undated resignation letter, which had been furnished to
respondent by Robert Hogue, states as follows:
LETTER OF RESIGNATION
To the TRUSTEES of
HOME HEALTH SERVICES
5505 Connecticut Ave., NW, #200
Washington, D.C. 20015
Dear Board of Trustees:
I hereby tender my resignation as Trustee of HOME
HEALTH SERVICES, effective at the close of the [sic]
July 15, 1997.
/s/
American Common Trust,
Douglas Carpa, Trust Officer
Notice of Acceptance of Resignation:
/s/
Bob Hogue, Trustee
The purported minutes, which are dated July 28, August 25,
September 27, October 27, November 24, and December 29, 1997, are
each one page long and contain a “Sign in Log” with various
signatures, including Robert Hogue’s purported signature.8
8
All six of these purported minutes are identical copies
of the same six purported minutes submitted to the Court by
Robert Hogue in numerous cases before this Court that were
dismissed on the ground that Robert Hogue was not a proper person
authorized to petition the Court on behalf of the trust. See
cases cited supra n.2.
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However, the purported minutes do not state the organization that
the minutes pertain to, nor do the purported minutes document
Douglas J. Carpa’s alleged notice of resignation, nor Robert
Hogue’s alleged appointment as the successor trustee for Home
Health, nor Robert Hogue’s or any trustee’s alleged authority to
amend the trust instrument.
E. Respondent’s Response
At the Court’s direction, respondent filed a response to the
foregoing objection challenging the authenticity of the purported
trust instrument. Respondent further contends that the objection
is identical to a previous objection filed by Robert Hogue in
Home Health Servs. Trust v. Commissioner, docket No. 9118-00,
which was dismissed for lack of jurisdiction.
F. Hearing on Respondent’s Motion
This matter was called for hearing at the Court’s trial
session in San Francisco, California. Counsel for respondent
appeared at the hearing and offered argument and evidence in
support of respondent’s motion to dismiss.
Robert Hogue appeared pro se, purportedly on behalf of Home
Health. The only evidence he offered was his naked assertion
that he is entitled to appear on behalf of Home Health because he
was appointed trustee on July 15, 1997.
G. Post-Hearing Memorandum Briefs
A memorandum brief, which was signed by Robert Hogue, does
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nothing more than repeat the same unsubstantiated and conclusory
allegations made in the petition and in the objection; i.e., that
Robert Hogue is the trustee for Home Health.
Discussion
According to respondent, Home Health 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 established that the taxpayer has the burden of
affirmatively establishing all facts giving rise to the Court’s
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 are without jurisdiction. See Fehrs v.
Commissioner, supra at 348.
Rule 60(a) 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.”
See Rule 23(a)(1). Rule 60(c) states that the capacity of a
fiduciary or other representative to litigate in the Court “shall
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be determined in accordance with the law of the jurisdiction from
which such person’s authority is derived.”
Robert Hogue contends that he was appointed trustee for Home
Health in accordance with the trust instrument. However, Robert
Hogue has failed to provide the Court with the documentary
evidence necessary to support his contention that he is vested
with authority to institute this action on behalf of Home Health
under the law of any relevant jurisdiction.
We note that Robert Hogue is no stranger to this Court and
was recently involved in a strikingly similar matter before this
Court,9 Residential Mgmt. Servs. Trust v. Commissioner, T.C.
Memo. 2003-56, wherein Robert Hogue also claimed that he was
validly appointed as successor trustee by the resigning trustee,
Douglas J. Carpa. In Residential Mgmt. Servs. Trust, Robert
Hogue submitted a purported trust instrument as proof of his
appointment that mirrors the trust instrument submitted in this
case except for the name of the trust. The evidence in that case
showed that the purported trust instrument was not recorded in
its entirety and that Robert Hogue admitted that he personally
9
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 that they were not
filed by a proper party. See Residential Mgmt. Servs. Trust v.
Commissioner, T.C. Memo. 2003-56; Rancho Residential Servs. Trust
v. Commissioner, T.C. Memo. 2003-57; Sunshine Residential Trust
v. Commissioner, T.C. Memo. 2003-59 (and cases cited therein at
n.16).
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changed the terms of the trust after his purported appointment as
successor trustee. Significantly, the recordation information on
the purported trust instrument in Residential Mgmt. Servs. Trust
and the recordation information in the present case are in
numerical order. Thus, it appears that the trust instrument here
was also not recorded in its entirety. Furthermore, the
purported minutes, including the signatures, submitted in the
present case are identical to the minutes submitted in Sunshine
Residential Trust v. Commissioner, T.C. Memo. 2003-59, Rancho
Residential Servs. Trust v. Commissioner, T.C. Memo. 2003-57, and
Residential Mgmt. Servs. Trust. Because none of the purported
minutes state the organization that they pertain to, it appears
that Robert Hogue simply copied the same purported minutes for
each case and submitted them as the Home Health minutes in the
present case. Thus, the record creates doubt as to the
authenticity of the purported trust instrument in its entirety
and of its related documents. “Paper records, no matter how
seemingly authentic, can be easily made to mask reality.” Comer
Family Equity Pure Trust v. Commissioner, T.C. Memo. 1990-316,
affd. 958 F.2d 136 (6th Cir. 1992). Because he provided only a
copy of a trust instrument without any certification as to its
authenticity other than his own uncorroborated and self-serving
assertions, we have serious doubts that Robert Hogue has
presented the Court with Home Health’s valid and complete trust
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instrument. See Residential Mgmt. Servs. Trust v. Commissioner,
supra. Thus, we do not accept Robert Hogue’s unverified
testimony that he is the trustee for Home Health.
Even assuming arguendo that the purported trust instrument
is authentic, Robert Hogue has still failed to establish that he
was appointed successor trustee for Home Health in accordance
with paragraph Eighth of the purported trust instrument. That
paragraph provides, in pertinent part, that “A Successor-Trustee
may be appointed by the current Trustee or Trustees, a court of
competent jurisdiction, or by consensus with the and [sic]
Beneficiaries if the First Trustee resigns with 30 days
notice”.10 The record does not contain any evidence that the
resigning trustee provided 30 days’ notice. At best, there is a
purported appointment document dated July 15, 1997, and a
questionable purported resignation letter wherein Douglas J.
Carpa purportedly provides notice of his resignation. However,
the purported resignation letter is undated. The evidence
suggests that the resignation letter was created on or about July
15, 1997. The fact of the matter, however, is that Robert Hogue
purportedly in his capacity as “trustee” signed the resignation
letter accepting notice of Douglas J. Carpa’s resignation.
Similar to the case in Residential Mgmt. Servs. Trust v.
10
We need not and do not address whether Douglas J. Carpa
has such valid authority under the law of any relevant
jurisdiction.
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Commissioner, supra, Robert Hogue’s purported actions relating to
Home Health predated his purported appointment as successor-
trustee.
Accordingly, we hold that evidence necessary to support the
contention that Robert Hogue was vested with authority to
institute this action on behalf of Home Health is lacking.
Therefore, we shall dismiss this case for lack of jurisdiction
consistent with respondent’s motion.
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 order of dismissal for
lack of jurisdiction will be
entered.