2000 Tax Ct. Memo LEXIS 83">*83 An order of dismissal for lack of jurisdiction granting respondent's motion will be entered.
MEMORANDUM OPINION
CHIECHI, JUDGE: This case is before the Court on respondent's motion to dismiss for lack of jurisdiction (respondent's motion). We shall grant respondent's motion.
BACKGROUND
For purposes of respondent's motion, the parties do not dispute the following factual allegations that are part of the record. At all relevant times, Scenic Wonders Gallery, LLC (Scenic Wonders) was a limited liability company that is taxed as a partnership because it did not make an election to be taxed as a corporation. Scenic Wonders filed partnership income tax returns, Forms2000 Tax Ct. Memo LEXIS 83">*84 1065 (returns), for taxable years 1995 and 1996. In those returns, it was indicated that there were two part- ners/members of Scenic Wonders, i.e., Photo Art Publishing Trust and Photo Art Marketing Ent. Consequently, the provisions of sections 6221 through 6234 apply. 1
Respondent issued a Notice of Final Partnership Administrative Adjustment which was addressed as follows:
TAX MATTERS PARTNER
SCENIC WONDERS GALLERY LLC
PHOTO ART MARKETING ENTERPRISES
320 N 89A 14
SEDONA, AZ 86336
John P. Wilde (Mr. Wilde) timely mailed to the Court a petition purportedly filed on behalf of Scenic Wonders. Mr. Wilde identified himself in the petition as co-trustee of Photo Art Marketing Trust. Mr. Wilde further represented in the petition that Photo Art Marketing Trust is the tax matters partner (TMP) for Scenic Wonders. 2000 Tax Ct. Memo LEXIS 83">*85 Photo Art Marketing Trust was formed under the laws of the State of Arizona.
Upon commencement of the examination of the returns filed by Scenic Wonders for taxable years 1995 and 1996, respondent requested complete copies of the trust documents relating to Photo Art Marketing Trust, the purported TMP for Scenic Wonders, documentation regarding those returns, the nature of the business of Scenic Wonders, and the relationship of Scenic Wonders to its alleged owners, as well as other items of substantiation. Neither the trust documents nor the other documents and information requested was provided to respondent.
Respondent's motion contends in pertinent part:
15. * * * all of respondent's records regarding
the TMP trust [Photo Art Marketing Trust] indicate an
entity named D & E Sword Company is the trustee. These
records are based upon representations made by the TMP
trust to respondent in correspondence, and in representations
made by the TMP trust in its petition with this
Court in a related docketed case (Docket No. 16506-98).
16. Respondent's counsel contacted the Arizona
Corporation2000 Tax Ct. Memo LEXIS 83">*86 Commission to determine the existence/validity of
the entity called D & E Sword Company. The Corporation
Commission informed respondent's counsel that it had no record of
any entity by that name ever existing in the State of Arizona.
Further, the Corporation Commission informed respondent's counsel
that it had no record of any entity incorporated in Arizona
under the name of, or in reference to, an individual named John
P. Wilde.
17. There is absolutely no evidence from which the Court
can adduce that there has been a legal assignment of John P.
Wilde as the Co-Trustee of the TMP Trust.
18. Petitioner has provided no evidence that Mr.
Wilde's appointment as Co-Trustee is valid or authorized under
the terms of the TMP trust indenture (assuming one exists).
* * * * * * *
20. * * * petitioner has failed to demonstrate
that John P. Wilde was legally appointed as Co-Trustee
authorized to act on behalf of the TMP trust and bring
the instant case before this Court. See2000 Tax Ct. Memo LEXIS 83">*87 T.C.
Petitioner filed an objection to respondent's motion in which it asks the Court to deny that motion. That objection asserts in pertinent part:
3. The Respondent's objection goes to the management of the
Trust, its internal affairs, concerns about its administration,
the declaration of rights and the determinations of matters
involving the trustee. As the Respondent concedes that these
[sic] are "Arizona Trusts" [sic] * * *, this issue falls
within the exclusive jurisdiction of the superior court here in
the State of Arizona. See
this court is without jurisdiction to determine whether * * *
[Mr. Wilde] is the duly authorized Trustee. The Petitioner need
not remind the Court of the consequences of taking any action
over which subject matter is completely lacking.
4. Any objection the Respondent or Respondent's
counsel has in this area must be taken up in the Superior Court
here in Arizona, assuming of course the Respondent or
Respondent's counsel has standing. The irony is of course, 2000 Tax Ct. Memo LEXIS 83">*88 if
Respondent or Respondent's counsel does take the matter up with
the Superior Court, where the Respondent will have the burden of
proof, and if the Superior Court finds that the Trusts are
valid, then the Respondent will be barred by res judicata from
asserting the sham trust claim that forms the basis for his
deficiency determination.
5. * * * In essence the factual claims raised by
the Motion to Dismiss are inextricably intertwined with
the facts going to the merits of the Commissioner's sham trust
claim at issue in this case. If the Trusts [sic] are valid, then
Mr. * * * [Wilde], under Arizona Law, will be presumed to be the
duly authorized trustee, whether it is as a Trustee of a
resulting trust, constructive trust or expressed [sic] trust.
Therefore, the only course available to this Court is to defer
consideration of the jurisdictional claims to the trial on the
merits.
(9th Cir., 1993). Careau Group v. United Farm Workers [of Am.],
court may hear evidence and make findings of fact necessary to
rule on the subject matter jurisdiction question prior to trial,
IF THE JURISDICTIONAL FACTS ARE NOT INTERTWINED WITH THE
MERITS.") (Emphasis added)
The Court held a hearing on respondent's motion. At that hearing, Mr. Wilde appeared as trustee for Photo Art Marketing Trust, the purported TMP of Scenic Wonders. 2 Petitioner proffered no evidence, and the parties presented no new arguments, at that hearing.
DISCUSSION
(c) Capacity: * * * The capacity of a fiduciary or other
representative to litigate2000 Tax Ct. Memo LEXIS 83">*90 in the Court shall be determined in
accordance with the law of the jurisdiction from which such
person's authority is derived.
The parties do not dispute that Photo Art Marketing Trust, the purported TMP of Scenic Wonders, is a trust organized under the laws of the State of Arizona. Under Arizona law, see
On the record before us, we find that petitioner has failed to establish that Mr. Wilde is authorized to act on behalf of Photo Art Marketing Trust, the purported TMP of Scenic Wonders. 3
To reflect the foregoing,
An order of dismissal for lack of jurisdiction granting respondent's motion will be entered.
1. All section references are to the Internal Revenue Code in effect for the years at issue. All Rule references are to the Tax Court Rules of Practice and Procedure.↩
2. At the hearing, the Court informed Mr. Wilde that its allowing him to appear at the hearing as the alleged trustee of Photo Art Marketing Trust did not mean that the Court agreed that he in fact was a duly appointed and authorized trustee of that entity.↩
3. We have considered all of the contentions and arguments of petitioner that are not discussed herein, and we find them to be without merit and/or irrelevant.↩