Acme Equipment Trust, Robert Hogue, Trustee - Page 10




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          Furthermore, 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)(1) 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.”  The record shows that California           
          State law is controlling in this case.                                      
               Under California law, a trustee is authorized to commence              
          litigation on behalf of a trust.  Cal. Prob. Code sec. 16249                
          (West Supp. 2002).  However, Acme has failed to provide the Court           
          with the documentary evidence necessary to support its contention           
          that Robert Hogue was vested with authority to institute this               
          action on its behalf.  As it pertains to the question of Robert             
          Hogue’s status as a duly appointed trustee of Acme, the record in           
          this case is, at best, muddled.                                             
               As previously discussed, Acme presented the Court with two             
          versions of the purported trust instrument.  The first document,            
          dated January 1, 1994, identifies E.E. Salera D.C. as “creator”             






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