- 22 -
B. Independence of Mercury Solar PTO Trustees
When Mercury Solar PTO was purportedly created in 1994,
someone named J. Clark Atkinson (Atkinson) was named “Fiduciary
Owner”. On the same day, Atkinson appointed Sparkman as “Agent”
to “operate the company to the same extent as if he were the
owner.” In 1998, Atkinson appointed Porter as “Trustee”
(notwithstanding that Mercury Solar PTO’s formation documents make
no provision for any “trustee”, but only for “Fiduciary Owners”)
and resigned shortly thereafter as “Fiduciary Owner” (thereby
leaving Mercury Solar PTO with no “Fiduciary Owner”).
On the basis of the evidence in the record, we are not
persuaded that either Atkinson or Porter served any independent
role in Mercury Solar PTO as “Fiduciary Owner” or “trustee”.23 The
evidence does not show that Atkinson ever did anything, except
possibly sign some documents. We draw an adverse inference from
petitioners’ failure to call Atkinson as a witness. Porter’s
testimony, on the other hand, convinced us that she had no
meaningful role at Mercury Solar PTO but was merely an absentee
23 Similarly, there is no indication in the record that the
trustees or “Fiduciary Owners” of HEH, apart from Sparkman, had
any meaningful role in that purported entity. On Aug. 10, 1994,
when Mercury Solar PTO was purportedly created, the trustees of
HEH were Lee Allan Hansen and Porter. There is no indication in
the record of what duties, if any, Lee Allan Hansen performed
with respect to HEH other than signing some organizational
documents. Nor is there any indication that Porter had any
significant duties as purported trustee of HEH. To the contrary,
her testimony evinced no meaningful knowledge of HEH operations.
Page: Previous 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 NextLast modified: May 25, 2011