ABFA Trust v. Commissioner , 80 T.C.M. 588 ( 2000 )

ABFA TRUST, DAVID JABLONSKI, TRUSTEE, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent

ABFA Trust v. Commissioner

No. 16061-99

United States Tax Court

T.C. Memo 2000-331; 2000 Tax Ct. Memo LEXIS 389; 80 T.C.M. 588; T.C.M. (RIA) 54097;

October 25, 2000, Filed

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">*389 An appropriate order of dismissal for lack of jurisdiction will be entered.

Cheryl R. Frank and Gerald W. Kelly, for petitioner. ^{Mary Ann Waters, for respondent.}

Laro, David

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LARO

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 60(a). 2000 Tax Ct. Memo LEXIS 389">*390 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 the ADFA Trust but not did include any trust instrument for petitioner (the ABFA Trust). 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. 2000 Tax Ct. Memo LEXIS 389">*391 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">501 U.S. 868, 501 U.S. 868">870, 115 L. Ed. 2d 764">115 L. Ed. 2d 764, 111 S. Ct. 2631">111 S. Ct. 2631 (1991); Neilson v. Commissioner, 94 T.C. 1">94 T.C. 1, 94 T.C. 1">9 (1990); Naftel v. Commissioner, 85 T.C. 527">85 T.C. 527, 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">65 T.C. 346, 65 T.C. 346">348 (1975); Wheeler's Peachtree Pharmacy, Inc. v. Commissioner, 35 T.C. 177">35 T.C. 177, 35 T.C. 177">180 (1960); National Comm. to Secure Justice, Etc. v. Commissioner, 27 T.C. 837">27 T.C. 837, 27 T.C. 837">839 (1957).">*392 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">93 T.C. 22, 93 T.C. 22">27 (1989); 65 T.C. 346">Fehrs v. Commissioner, supra at 348; 27 T.C. 837">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">*393 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. Commissioner, 114 T.C. 268">114 T.C. 268 (2000); Renaissance Enter. 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. ^{Rule 60(c). On the basis of our review of that law, 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., 239 Va. 71">239 Va. 71, 387 S.E.2d 468">387 S.E.2d 468 (Va. 1990); Raney v. Four Thirty Seven Land Co., 233 Va. 513">233 Va. 513, 357 S.E.2d 733">357 S.E.2d 733, 357 S.E.2d 733">736 (Va. 1987); Fisher v. Dickenson, 84 Va. 318">84 Va. 318, 4 S.E. 737">4 S.E. 737 (Va. 1888); cf. Walt Robbins, Inc. v. Damon Corp., 232 Va. 43">232 Va. 43, 348 S.E.2d 223">348 S.E.2d 223, 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 a trust, and Mr. Jablonski has not been proven to be its trustee.}

">*394 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. ^{AL Trust v. Commissioner, T.C. Memo 2000-276; 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. Memo 2000-273; PM Trust v. Commissioner, T.C. Memo 2000-272; Renaissance Enters. Trust v. Commissioner, supra. To reflect the foregoing,}

">*395 An appropriate order of dismissal for lack of jurisdiction will be entered.

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Footnotes

• 1. Ms. Frank and Mr. Kelly entered their appearance on July 17, 2000. Petitioner's petition was filed with the Court by David Jablonski (Mr. Jablonski), in his stated capacity as petitioner's trustee.↩

• 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.↩

• 3. In addition to our regular service of process, we telephoned petitioner's counsel on July 24, 2000, to inform them of this extension.↩

• 4. Petitioner's mailing address is in Alexandria, Virginia.↩

• 5. 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">69 T.C. 497, 69 T.C. 497">501↩ (1977). The record leads us to believe that petitioner has no corpus.

• 6. We have decided the same issue adverse to the trusts in the cases of AL Trust, BHC Trust, Malvern Hills Trust, PM Trust, and YMO Trust. Mr. Jablonski also petitioned the Court on behalf of each of those trusts.↩