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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, Deschutes 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
Deschutes, the record in this case is, at best, muddled.
As previously discussed, Deschutes 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,
identifies a Carol Ruthenberg as “creator” and Robert Hogue as
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