- 5 - the consequences of taking any action over which sub- ject matter jurisdiction is completely lacking. 4. Any objection the Respondent or Respondent’s counsel has in this area must be taken up in the Supe- rior Court here in Arizona, assuming of course the Respondent or Respondent’s counsel has standing. The 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. Wilde, under Arizona Law, will be presumed to be the duly authorized trustee, whether it is as a Trustee of the 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 that hearing, Mr. Wilde appeared on behalf of petitioners.1 Petition- 1At the hearing the Court informed Mr. Wilde that its allow- ing him to appear at the hearing as the alleged co-trustee of each petitioner did not mean that the Court agreed that he in fact was a duly appointed and authorized co-trustee of each petitioner.Page: Previous 1 2 3 4 5 6 7 Next
Last modified: May 25, 2011