- 15 -
837, 838-839 (1957). 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) 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.
See Rule 23(a)(1).” 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
Illinois State law is controlling in this case.
Under Illinois law, only the trustee17 is authorized to
commence litigation on behalf of a trust. 760 Ill. Comp. Stat.
Ann. 5/4.11 (West 1992).18 In this respect, the Illinois Trusts
17 For purposes of the Ill. Trusts and Trustees Act, see
760 Ill. Comp. Stat. Ann. 5/1 (West 1992), a “trust” means a
trust created by agreement, declaration or other written
instrument. 760 Ill. Comp. Stat. Ann. 5/2(1) (West 1992). Thus,
the Ill. Trusts and Trustees Act is applicable to a business
trust. See id. at 5/4.23. A “trustee” is defined as “the
trustee or any successor or added trustee of the trust, whether
appointed by or pursuant to the instrument creating the trust, by
order of court or otherwise”. 760 Ill. Comp. Stat. Ann. 5/2(2)
(West 1992).
18 See Pierce v. Chester Johnson Elec. Co., 454 N.E.2d 55,
57 (Ill. App. Ct. 1983) (trustees possess a specific statutory
power to sue in a representative capacity on behalf of a trust);
(continued...)
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