2000 Tax Ct. Memo LEXIS 71">*71 An order denying petitioner's motion and 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) and petitioner's motion to substitute party and to change caption (petitioner's motion). We shall grant respondent's motion and deny petitioner's motion.
BACKGROUND
For purposes of respondent's motion and petitioner's motion, the parties do not dispute the following factual allegations that are part of the record. During its taxable year 1994, petitioner was a trust engaged in business in the State of Indiana. Petitioner filed a Federal income tax return for estates and trusts, Form 1041 (return), for that taxable year, which was signed by Jimmy C. Chisum as agent for the Prudent Man Trustee Co.
Upon commencement of the examination of the 1994 return filed by petitioner, respondent requested petitioner to provide respondent with complete copies of the trust documents relating to it. Petitioner2000 Tax Ct. Memo LEXIS 71">*72 refused to provide respondent with the trust documents or any other type of documentary evidence regarding who was the first appointed trustee of petitioner.
The notice of deficiency issued to petitioner was sent to the following two addresses:
Bantam Domestic Trust Bantam Domestic Trust
aka Snyder Poultry Processing aka Snyder Poultry Processing
Prudent Man Trustee Company, Prudent Man Trustee Company,
Trustee Trustee
Post Office Box 138 Post Office Box 204
Harlan, Indiana 46743-0138 Snyder, Nebraska 68664-0204
Petitioner filed a petition in this Court which was signed on its behalf by Jimmy C. Chisum, as "Agent for Trustee Prudent Man Trustee Company", the purported trustee for petitioner.
Respondent's motion contends in pertinent part:
14. In summary, Mr. Chisum lacks the capacity to bring
the instant suit directly on behalf of the trust because he
is not the trustee. Additionally, Mr. Chisum lacks the
capacity to represent the trustee or any other person in
this2000 Tax Ct. Memo LEXIS 71">*73 proceeding because he is not an attorney and is not
otherwise admitted to practice before this Court. * * *
15. Since the petition in this case was not brought by
a party with proper capacity as required by the Tax Court
Rules of Practice and Procedure, this case should be dismissed
for lack of jurisdiction.
Petitioner filed an objection to respondent's motion in which it asks the Court to deny that motion. Petitioner's objection to respondent's motion asserts in pertinent part:
As there is a change in fiduciary simultaneous
with this * * * Objection and the change in fiduciary
answers the objection raised by the Respondent in the
Motion to Dismiss, this Court cannot dismiss as set forth in
Tax Court. Any further objections by the Respondent must be done
either by an answer to the Petition or by other motions as set
forth in Rule 36, Rules of Practice and Procedure, United States
Tax Court.
The Court had the document submitted by petitioner that purported to be a change in fiduciary filed2000 Tax Ct. Memo LEXIS 71">*74 as petitioner's "Motion to Substitute Party and to Change Caption". Petitioner's motion alleges in pertinent part:
Notice is hereby given that John P. Wilde has been
appointed as Co-Trustee of Bantam Domestic Trust along
with Jimmy C. Chisum * * * and Prudent Man Trustee Co.
has resigned * * *. John P. Wilde will be proceeding
in his capacity as a Co-Trustee of an Expressed [sic]
Trust. * * *
Attached to petitioner's motion are two documents, one of which is entitled "APPOINTMENT OF SUCCESSOR TRUSTEE" and the second of which is entitled "MINUTE OF TRUSTEE RESIGNATION". The document entitled "APPOINTMENT OF SUCCESSOR TRUSTEE" states:
THE PRUDENT MAN TRUSTEE CO., does hereby appoint J
C Chisum & John Wilde, as the Successor Trustees for
BANTAM TRUST.
The appointment takes effect immediately and asks
that the Successor waive all time and notice require-
ments in the appointment and resignation.
Executed this 21(st) day of January, in the year of
Our Lord, 1999.
THE PRUDENT MAN TRUSTEE2000 Tax Ct. Memo LEXIS 71">*75 CO.
TRUSTEE
by: ns
Donna Chisum, F/A for Trustee
ACCEPTANCE OF APPOINTMENT AS SUCCESSOR TRUSTEE
THE PRUDENT MAN TRUSTEE CO., does hereby accept
the appointment of Successor Trustees and the resignation of J C
Chisum & John Wilde. The above resignation and waiver of time is
accepted, and with the accepting of SUCCESSOR TRUSTEES, J C
Chisum & John Wilde, assume the duties and responsibilities as
TRUSTEE for BANTAM TRUST.
Executed this 21(st) day of January, in the year of
Our Lord, 1999.
J C Chisum
TRUSTEE
by: ns
J C Chisum, Trustee
John Wilde
by: ns
John Wilde, Trustee
The document entitled "MINUTE OF TRUSTEE RESIGNATION"
states:
2000 Tax Ct. Memo LEXIS 71">*76 THE PRUDENT MAN TRUSTEE CO., does hereby resign
the position as Trustee for BANTAM TRUST. By special
arrangement with the Successors, J. C. CHISUM & JOHN
WILDE, all the time clauses in this act are waived.
The resignation is immediate, final and irrevocable.
This resignation takes effect immediately upon the
signing and endorsement by the Successor Trustee.
This is intended to release THE PRUDENT MAN
TRUSTEE CO., from all responsibility associated with
the Trust.
Executed this 21(st) day of January, in the year of
Our Lord, 1999.
THE PRUDENT MAN TRUSTEE CO.
TRUSTEE
by: ns
Donna Chisum, F/A for Trustee
Ratified, Accepted, Acknowledged this 21(st) day of
January, in the year of Our Lord, 1999.
J C Chisum
by: ns
2000 Tax Ct. Memo LEXIS 71">*77 J C Chisum, Trustee
John Wilde
by: ns
Respondent filed an objection to petitioner's motion
(respondent's objection). That objection asserts in pertinent part:
4. In response to respondent's Motion to Dismiss
for Lack of Jurisdiction, petitioner provided to this
Court copies of documents alleging that Prudent Man
Trustee Co. was removed as trustee and that Jimmy C.
Chisum and John P. Wilde have been appointed successor
trustees of the petitioner trust.
5. There is absolutely no evidence from which the
Court can adduce that the documents referred to in
paragraph 4., above, create a legal assignment of either Mr.
Chisum and/or Mr. Wilde as successor trustees. The documents
petitioner submitted appear to be self-serving and created
solely in response to respondent's original Motion to Dismiss
for Lack of Jurisdiction.
6. Petitioner has provided no evidence that said
assignments are valid or authorized under the terms2000 Tax Ct. Memo LEXIS 71">*78 of
the trust indenture (assuming one exists).
7. If the initial trustee or any successor trustees
thereafter were, in fact, an entity called Prudent
Man Trustee Co., petitioner should be required to
produce credible evidence establishing the legal existence and
validity of that entity.
8. Without the evidence described above in paragraph 7.,
petitioner has failed to demonstrate that either Mr. Chisum
and/or Mr. Wilde were legally appointed as subsequent trustees
authorized to act on behalf of the trusts [sic] and bring the
instant case before this Court. See T.C.
9. The capacity of Mr. Chisum and/or Mr. Wilde to
bring the instant suit in this Court has not been
established.
The Court held a hearing on respondent's motion and petitioner's motion (hearing), at which Mr. Chisum appeared on behalf of petitioner. 1 At that hearing, respondent introduced into the record a document signed by the Secretary of State of Nebraska. 2 That document stated in pertinent part:
2000 Tax Ct. Memo LEXIS 71">*79 I, Scott Moore, Secretary of State of Nebraska do
hereby certify that after a thorough search of all
records, I do not find a record of a corporation by the
name
PRUDENT MAN TRUSTEE CO.
ever having filed Articles of Incorporation or issued a
Certificate of Authority to transact business as a
foreign corporation in the state of Nebraska.
DISCUSSION
(a) Petitioner: (1) Deficiency or Liability
Actions: A case shall be brought by and in the name of
the person against whom the Commissioner determined the
deficiency (in the case of a notice of 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). A case timely brought
shall not be dismissed on the ground that it is not
properly brought on behalf of a party until a reasonable time
has been allowed after objection for ratification by such party
of2000 Tax Ct. Memo LEXIS 71">*80 the bringing of the case; and such ratification shall have
the same effect as if the case had been properly brought by such
party. * * *
* * * * * * *
(c) Capacity: * * * The capacity of a fiduciary
or other representative to litigate in the Court shall
be determined in accordance with the law of the jurisdiction
from which such person's authority is derived.
The record is unclear as to whether petitioner was organized as a trust under the laws of Arizona or some other State, although the parties do not dispute that petitioner was carrying on business during its taxable year 1994 in the State of Arizona. At the hearing, Mr. Chisum asserted that the administration of the trust is governed by the laws of the State of Arizona and that the "sole jurisdiction or exclusive jurisdiction in determining the validity of the contract2000 Tax Ct. Memo LEXIS 71">*81 for trust and determining the validity of the trustee party, * * * [is] in Superior Court of State of Arizona."
Assuming arguendo, as petitioner claims, that it is a trust, the administration of which is subject to the laws of the State of Arizona, under Arizona law, see
2000 Tax Ct. Memo LEXIS 71">*83 We are not persuaded by the document relating to petitioner entitled "APPOINTMENT OF SUCCESSOR TRUSTEE" and "MINUTE OF TRUSTEE RESIGNATION" that Mr. Wilde and Mr. Chisum are duly appointed and authorized trustees of petitioner. On the record before us, we find that petitioner has failed to establish that Mr. Wilde and Mr. Chisum are authorized to act on its behalf. 6
To reflect the foregoing,
An order denying petitioner's motion and an order of dismissal for lack of jurisdiction granting respondent's motion will be entered.
1. At the hearing, the Court informed Mr. Chisum that its allowing him to appear at the hearing as the alleged trustee of petitioner did not mean that the Court agreed that he in fact was a duly appointed and authorized trustee of petitioner.↩
2. Presumably, respondent proffered the document in question at the hearing on respondent's motion and petitioner's motion because one of the addresses to which respondent sent the notice issued to petitioner was in Nebraska.↩
3. All Rule references are to the Tax Court Rules of Practice and Procedure.↩
4. Assuming arguendo, as respondent claims upon information and belief, that petitioner is a trust, the administration of which is subject to the laws of the State of Indiana, under Indiana law, see
5. Petitioner no longer contends that Mr. Chisum is authorized to act on its behalf in this proceeding as the agent of Prudent Man Trustee Co., and we conclude that it has abandoned any such argument. Even if it had not abandoned such an argument, on the record before us, we find that petitioner has not shown that Mr. Chisum was properly employed by the trustee of petitioner in accordance with the laws of either the State of Arizona, see
6. 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.↩
