Malvern Hills Trust - Page 5




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          such as petitioner, a proper filing requires that the taxpayer              
          tendering (or causing to be tendered 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 (2000); Renaissance Enters. 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.5  See Rule 60(c).  On the                
          basis of our review of that law and of the trust instrument, 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., 387 S.E.2d 468 (Va. 1990); Raney v. Four Thirty Seven Land            
          Co., 357 S.E.2d 733, 736 (Va. 1987); Fisher v. Dickenson, 4 S.E.            
          737 (Va. 1888); cf. Walt Robbins, Inc. v. Damon Corp., 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 an irrevocable trust, and Mr. Jablonski           
          is not petitioner’s trustee;6 Mr. Jablonski is listed on the                

          5 In addition to the fact that petitioner’s mailing address                 
          is in Alexandria, Virginia, the trust instrument was executed in            
          that city.                                                                  
          6 The record does contain a letter dated Mar. 24, 2000, from                
                                                             (continued...)           





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