- 10 - 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to continue his jurisdic- tional challenge, when the substitution of the fidu- ciary answers all of the objections originally made in the Motion to Dismiss.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)Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 Next
Last modified: May 25, 2011