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petitioner did not file a bankruptcy petition, and, therefore,
petitioner cannot rely on section 6213(f) as a basis for its
assertion that its petition was timely filed.
Although the record tends to show that petitioner did not
file a bankruptcy petition,2 and that the petition was not timely
filed under section 6213(a), we will decide respondent's motion
to dismiss by focusing on the question of petitioner's capacity
to invoke this Court's jurisdiction.
Discussion
Rule 60(c) states that the capacity of a corporation to
engage in litigation in this Court shall be determined by the law
under which the corporation was organized. Brannon's of Shawnee,
Inc. v. Commissioner, 71 T.C. 108, 111 (1978); Condo v.
Commissioner, supra at 151; Great Falls Bonding Agency, Inc. v.
Commissioner, 63 T.C. 304, 305 (1974). Because petitioner was
organized in the State of California, we look to the law of that
State to determine whether petitioner possesses the requisite
capacity to invoke this Court's jurisdiction.
Cal. Rev. & Tax Code sec. 23301(b) (West 1992) provides
(with exceptions not applicable here) that the corporate powers,
rights, and privileges of a domestic taxpayer may be suspended if
any tax due and payable upon notice and demand from the Franchise
2 There is some evidence that B. Joe Rosa, Jr., and Osanna M. Rosa,
individually, were in bankruptcy, but there is no evidence that
petitioner/corporation was in bankruptcy.
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