Photo Art Marketing Trust, Jimmy C. Chisum, Trustee - Page 10




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               the underlying facts related to jurisdictional question                
               raised in the Motion to Dismiss are inextricably inter-                
               twined with the facts going to the merits of the Peti-                 
               tion pending in this Court.  Therefore, the only course                
               available to this Court is to defer consideration of                   
               the jurisdictional claims to the trial on the merits.                  
               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 jurisdic-                 
               tion question prior to trial, if the jurisdictional                    
               facts are not intertwined with the merits.”  (Emphasis                 
               added))                                                                
                    Given the controlling law for this issue, it would                
               be facially an abuse of discretion to deny the substi-                 
               tution of fiduciary when the initial filing from the                   
               Respondent objected to the Petition on the grounds that                
               this Court lacked jurisdiction.  Rule 60(a)(1), Rules                  
               of Practice and Procedure, United States Tax Court does                
               not permit the Respondent to continue his jurisdic-                    
               tional challenge, when the substitution of the fidu-                   
               ciary answers all of the objections originally made in                 
               the Motion to Dismiss.  The objection was that an agent                
               for the Trustee cannot proceed in this matter.  An                     
               agent for the Trustee is no longer proceeding.  One of                 
               the Co-Trustees is proceeding in his own name.  The                    
               fact that the Petitioners changed trustees to answer                   
               the objection is not a matter that this Court can                      
               concern itself with, unless the presiding judge is                     
               prepared to expose himself/herself, the Respondent and                 
               the Respondent’s counsel to personal liability.                        
               The Court held a hearing on respondent’s motion and peti-              
          tioners’ motion.  At that hearing, Jimmy C. Chisum (Mr. Chisum)             














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