Photo Art Marketing Trust, John P. Wilde, Co-Trustee - Page 5

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               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                 

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