Tarragon Trust - Page 9




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               It is well settled that the taxpayer has the burden of                 
          proving the Court’s jurisdiction by establishing affirmatively              
          all facts giving rise to our jurisdiction.  See Patz Trust v.               
          Commissioner, 69 T.C. 497, 503 (1977); Fehrs v. Commissioner, 65            
          T.C. 346, 348 (1975); Wheeler's Peachtree Pharmacy, Inc. v.                 
          Commissioner, 35 T.C. 177, 180 (1960); Natl. Comm. To Secure                
          Justice v. Commissioner, 27 T.C. 837, 838-839 (1957).  Moreover,            
          unless the petition is filed by the taxpayer, or by someone                 
          lawfully authorized to act on the taxpayer's behalf, we are                 
          without jurisdiction.  See Fehrs v. Commissioner, supra at 348.             
               Rule 60(a) requires that a case be brought "by and in the              
          name of the person against whom the Commissioner determined the             
          deficiency * * * or by and with the full descriptive name of the            
          fiduciary entitled to institute a case on behalf of such person."           
          Rule 60(c) states that the capacity of a fiduciary or other                 
          representative to litigate in the Court shall be determined in              
          accordance with the law of the jurisdiction from which such                 
          person's authority is derived.  As previously mentioned, the                
          parties agree that Virginia law is controlling in this case.                
               Based on our review of Virginia law, we conclude that a                
          trustee generally is a necessary party in an action brought on              
          behalf of a trust.  Accord Mendenhall v. Douglas L. Cooper, Inc.,           
          387 S.E.2d 468 (Va. 1990); Raney v. Four Thirty Seven Land Co.,             
          357 S.E.2d 733, 736 (Va. 1987); cf. Walt Robbins, Inc. v. Damon             






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