T.C. Memo. 2003-59
UNITED STATES TAX COURT
SUNSHINE RESIDENTIAL TRUST, ROBERT HOGUE, TRUSTEE, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 2213-02. 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 Sunshine Residential Trust
(Sunshine Residential).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 Sunshine
Residential 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 $91,583 $18,317 $18,317
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;
Home Health Servs. Trust v. Commissioner, T.C. Memo. 2003-58.
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 Sunshine Residential 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 Sunshine Residential’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
4
Sunshine Residential’s principal place of business was in
California at the time that the petition was filed with the
Court.
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determination was based on. (6) Petitioner claims, the
Notice of Deficiency, the claimed tax liability, and
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 Sunshine Residential 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 Sunshine Residential. The Court subsequently extended
the time within which the 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 Sunshine Residential
Trust is well established in his everyday work as
Trustee.
Attached to the objection are copies of, inter alia, a
purported trust instrument dated August 15, 1996, and a document
entitled “Trustee Resignation/Appointment of Successor-Trustee”
dated July 15, 1997 (appointment document).5
The purported trust instrument provides, in pertinent part,
as follows:
5
The same purported trust instrument and appointment
document were both submitted to the Court by Robert Hogue in
Sunshine Trust v. Commissioner, docket No. 9117-00, 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; Home Health Servs. Trust v. Commissioner, docket No. 9118-00;
Sunshine Trust v. Commissioner, supra; Residential Mgmt. Servs.
Trust v. Commissioner, T.C. Memo. 2001-297; cases cited supra
n.2.
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DECLARATION OF IRREVOCABLE TRUST
This Declaration of Irrevocable Trust is created this
15TH DAY OF August 1996, between CONTRACT ADMINISTRATORS TRUST, of Wash
SETTLOR and AMERICAN FINANCIAL SERVICES, Washington, D.C., with
mailing address of Washington D.C., Jeffery Williams and Douglas
Carpa Officers [sic], hereinafter called the TRUSTEES, who are
legal entities holding full title, not as individuals, hilt [sic]
collectively as the Board under the name of SUNSHINE RESIDENTIAL
FACILITY[6] * * *.
* * * * * * *
EIGHTH
* * * 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.
NINTH
The Trustee, by joining in the execution of this
agreement, hereby signifies acceptance of this trust.
* * * * * * *
IN WITNESS WHEREOF, the parties hereto have executed
this agreement the day and year first above written.
/s/ /s/
CONTRACT ADMINISTRATORS AMERICAN FINANCIAL
TRUST, SETTLOR, Enrique SERVICES TRUST,
Almodovar FIRST TRUSTEE, Jeffery
Williams, Trust Officer
[Emphasis added.]
Although the instrument identifies a Jeffery Williams and a
Douglas Carpa as the “trustees”, only Jeffery Williams
purportedly executed the document accepting his appointment on
6
The record indicates that Sunshine Residential Facility,
Sunshine Residential Facility Trust, and Sunshine Residential
Trust are one and the same.
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behalf of American Financial Services as a trustee for Sunshine
Residential. In contrast, there is nothing in the document (or
otherwise in the record) demonstrating that Douglas Carpa
purported to accept his appointment on behalf of American
Financial Services as a trustee for Sunshine Residential.
The purported resignation document provides, in pertinent
part, as follows:
TO ALL PERSONS, be it known that Douglas J. Carpa,
Trust Officer for American Common Trust,[7] tenders his
resignation on behalf of American Common Trust as
Trustee for Sunshine Residential Facility Trust. My
final act as trustee is to appoint the Successor-
Trustee(s). He shall be Mr. Bob Hogue.
On July 15, 1997, Douglas J. Carpa purportedly executed this
instrument in his capacity as “Resigning Trustee for American
Common Trust”.
E. 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
Sunshine Residential. The only evidence he offered was his naked
assertion that he is entitled to appear on behalf of Sunshine
7
American Common Trust, whose “home situs” is reputedly in
the Republic of Panama, is not otherwise identified in the
record.
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Residential because he was appointed successor trustee by Douglas
Carpa, the purported resigning “trustee”, on July 15, 1997.
Discussion
According to respondent, Sunshine Residential 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.” However, Robert Hogue
failed to provide the Court with documentary evidence necessary
to support his contention that he is vested with authority to
institute this action on behalf of Sunshine Residential under the
law of any relevant jurisdiction.
As previously discussed, Sunshine Residential presented the
Court with a purported trust instrument, dated August 15, 1996.
The preamble of the purported trust instrument identifies a
Jeffery Williams and a Douglas Carpa as “trustees”. Further,
paragraph Ninth of the purported trust instrument explicitly
requires the trustees to execute the purported trust instrument
accepting their appointment on behalf of American Financial
Services as trustees for Sunshine Residential. However, only
Jeffery Williams executed the purported trust instrument
accepting his appointment on behalf of American Financial
Services as a trustee for Sunshine Residential. In contrast,
Douglas Carpa did not execute the purported trust instrument
accepting his appointment on behalf of American Financial
Services as a trustee for Sunshine Residential. Therefore,
Douglas Carpa is not a trustee for Sunshine Residential.
Accordingly, Douglas Carpa’s purported appointment, in his
capacity as the “Resigning Trustee for American Common Trust”, of
Robert Hogue as successor trustee for Sunshine Residential must
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fail. See Bella Vista Chiropractic Trust v. Commissioner, T.C.
Memo. 2003-8.
In the absence of any persuasive basis for concluding that
Robert Hogue was duly appointed trustee for Sunshine Residential,
we shall dismiss this case for lack of jurisdiction consistent
with respondent’s motion.8
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.
8
Robert Hogue is no stranger to this Court and 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; Home Health Servs. Trust v. Commissioner, T.C. Memo.
2003-58 (and cases cited therein at n.16).