- 7 -
irony is of course, 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
are valid, then Mr. Chisum, 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 consider-
ation of the jurisdictional claims to the trial on the
merits. Farr v. United States, 990 F.2d 451, * * *
[454] n.1 (9th Cir., 1993). Careau Group v. United
Farm Workers [of Am.], 940 F.2d 1291, 1293 (9th Cir.
1991). See also Rosales v. United States, 824 F.2d
799, 803 (9th Cir. 1987) (“A * * * [district] 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 inter-
twined with the merits.”) (Emphasis added)
The Court held a hearing on respondent’s motion, at which
Mr. Chisum appeared on behalf of petitioners.1 At that hearing,
Mr. Chisum contended, inter alia:
I was one of the members of Sugar Tree, LLC, and subse-
quently substituted the trustee to give a better con-
trol in the tax matters and in the business administra-
tion.
1At the hearing, the Court informed Mr. Chisum that its
allowing him to appear at the hearing on behalf of each
petitioner did not mean that the Court agreed that he in fact had
the capacity to be appearing on their behalf.
Page: Previous 1 2 3 4 5 6 7 8 9 10 Next
Last modified: May 25, 2011