Bella Vista Chiropractic Trust, Robert Hogue, Trustee - Page 8




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          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, Bella Vista 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            
          Bella Vista, the record in this case is, at best, muddled.                  
               As previously discussed, Bella Vista 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” and a Michael Welch and an Edmond A. Salera as                    
          trustees.  The second document, dated January 13, 1997,                     






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