- 5 - 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.Page: Previous 1 2 3 4 5 6 7 Next
Last modified: May 25, 2011