Herbst Asset Management Trust, et al. - Page 17




                                       - 17 -                                         
          976 F.2d 279, 284 (6th Cir. 1992); Saxton v. Seiberling, 48 Ohio            
          St. 554, 29 N.E. 179 (1891); see Ohio R. Civ. P. 17(A).11                   
               In the cases at docket Nos. 9999-00 and 10000-00, Herbst               
          Management Trust and Herbst Charitable Trust, respectively, have            
          the burden of proving that this Court has jurisdiction, see Fehrs           
          v. Commissioner, 65 T.C. 346, 348 (1975); Natl. Comm. to Secure             
          Justice in the Rosenberg Case v. Commissioner, 27 T.C. 837, 839             
          (1957), by establishing affirmatively all facts giving rise to              
          our jurisdiction, see Wheeler’s Peachtree Pharmacy, Inc. v.                 
          Commissioner, 35 T.C. 177, 180 (1960); Consol. Cos. v. Commis-              
          sioner, 15 B.T.A. 645, 651 (1929).  In order to meet that burden,           
          Herbst Management Trust in the case at docket No. 9999-00 and               
          Herbst Charitable Trust in the case at docket No. 10000-00 must             
          provide evidence establishing who has the authority to act on its           
          behalf in each such proceeding.  See Natl. Comm. to Secure                  
          Justice in the Rosenberg Case v. Commissioner, supra at 839-840;            


               11Ohio R. Civ. P. 17(A) provides in pertinent part:                    
               RULE 17.  Parties plaintiff and defendant; capacity                    
                    (A) Real party in interest.  Every action shall be                
               prosecuted in the name of the real party in interest.                  
               An executor, administrator, guardian, bailee, trustee                  
               of an express trust, a party with whom or in whose name                
               a contract has been made for the benefit of another, or                
               a party authorized by statute may sue in his name as                   
               such representative without joining with him the party                 
               for whose benefit the action is brought. * * * [Empha-                 
               sis added.]                                                            






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