Scenic Wonders Gallery, LLC - Page 5




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               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                 
               [sic] are valid, then Mr. * * * [Wilde], under Arizona                 
               Law, will be presumed to be the duly authorized                        
               trustee, whether it is as a Trustee of a resulting                     
               trust, constructive trust or expressed [sic] trust.                    
               Therefore, the only course available to this Court is                  
               to defer consideration 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 jurisdic-                 
               tion question prior to trial, if the jurisdictional                    
               facts are not intertwined with the merits.”)(Emphasis                  
               added)                                                                 
               The Court held a hearing on respondent’s motion.  At that              
          hearing, Mr. Wilde appeared as trustee for Photo Art Marketing              
          Trust, the purported TMP of Scenic Wonders.2  Petitioner prof-              
          fered no evidence, and the parties presented no new arguments, at           
          that hearing.                                                               
                                     Discussion                                       
               Rule 60 provides in pertinent part:                                    
                    (c)  Capacity:  * * * The capacity of a fiduciary                 
               or other representative to litigate in the Court shall                 


               2At the hearing, the Court informed Mr. Wilde that its                 
          allowing him to appear at the hearing as the alleged trustee of             
          Photo Art Marketing Trust did not mean that the Court agreed that           
          he in fact was a duly appointed and authorized trustee of that              
          entity.                                                                     





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