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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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