The opinion
T.C. Memo. 2003-127
UNITED STATES TAX COURT
THE ADORNO ASSET MANAGEMENT TRUST, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 9458-02. Filed May 1, 2003.
Edwin R. Adorno, pro se.
Jason W. Anderson, for respondent.
MEMORANDUM OPINION
DAWSON, Judge: This case was assigned to Special Trial
Judge Robert N. Armen, Jr., pursuant to the provisions of section
7443A(b)(5) and Rules 180, 181, and 183.1 The Court agrees with
and adopts the opinion of the Special Trial Judge, which is set
forth below.
1
Unless otherwise indicated, all section references are to
the Internal Revenue Code, as amended, and all Rule references
are to the Tax Court Rules of Practice and Procedure.
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OPINION OF THE SPECIAL TRIAL JUDGE
ARMEN, Special Trial Judge: This matter is before the Court
on respondent’s motion to dismiss for lack of jurisdiction.
Respondent maintains that Edwin R. Adorno (Mr. Adorno), the
individual who signed the petition, is not a proper party
authorized to bring suit on behalf of The Adorno Asset Management
Trust2 (Adorno Asset) under Rule 60. As discussed in detail
below, we shall grant respondent’s motion and dismiss this case
for lack of jurisdiction.
Background
A. Notice of Deficiency
Respondent issued a notice of deficiency to Adorno Asset
determining a deficiency in its Federal income tax for the
taxable year 1998 in the amount of $781,606 and an accuracy-
related penalty under section 6662(a) in the amount of $156,321.
In the notice of deficiency, respondent disallowed deductions
claimed by Adorno Asset because it:
failed to establish the amount, if any, that was paid
during the taxable year for ordinary and necessary
expenses for the production of rental income; you
failed to establish the cost or other basis of the
property claimed to have been used in the rental
activity; and you failed to establish that the claimed
2
Use of the terms “trust”, “trustee”, and “trust
instrument” (and their derivatives) in this opinion is intended
for narrative convenience only. Thus, no inference should be
drawn from our use of such terms regarding any legal status or
relationship.
- 3 -
Schedule E rental activity was entered into for profit
for the taxable year 1998.
Respondent determined that “the trust arrangement involving the
following trust [Adorno Business Company, Taxpayer Identification
Number XX-XXXXXXX] is a sham with no economic substance and is
disregarded for federal income tax purposes”. Respondent also
disallowed the income distribution deduction claimed by Adorno
Asset because it “failed to establish the requirements for
deduction of IRC sections 651 or 661 were satisfied”. Finally,
respondent determined that Adorno Asset is liable for an
accuracy-related penalty due to negligence or disregard of rules
and regulations, a substantial understatement of income tax, or a
substantial valuation overstatement.
B. Petition
The Court subsequently received and filed a petition for
redetermination challenging the notice of deficiency.3 The
petition was signed by Mr. Adorno as “Edwin R. Adorno
(Director)”.4
3
The principal place of business of Adorno Asset was in
Chicago, Ill., at the time that the petition was filed with the
Court.
4
Use of the terms “director” and “executive director” in
this opinion is intended for narrative convenience only. Thus,
no inference should be drawn from our use of such terms regarding
any legal status or relationship.
- 4 -
Paragraph 4 of the petition, which sets forth the bases on
which the notice of deficiency is challenged, alleges as follows:
(1) Business trust are an acceptable business entity
according to Reg. 301.7701.4(b). (2) Business trust
has a business purpose for profit. * * * (3) Supreme Ct
has upheld that income cannot be directed to another
entity or person if the income can only properly belong
only to the entity it was intended. Lucas vs. Earl 281
US 111 (1930)[5]
C. Respondent’s Motion
Respondent filed a motion to dismiss for lack of
jurisdiction. In the motion, respondent asserts that this case
should be dismissed for lack of jurisdiction because “the
petition in the instant case was not brought by a party with
proper capacity”. Respondent further contends:
Upon commencement of the examination of
petitioner’s 1998 taxable year, respondent requested a
copy of the complete trust documents for petitioner.
Petitioner failed to cooperate with respondent and
provide the documents requested during the examination
of this case.
To date [July 22, 2002], petitioner has not
provided respondent with trust documents which
establish the chain of trusteeship from the creation of
the trust until the time the petition was filed.
5
A business trust (commonly known as a “Massachusetts
trust”) is an unincorporated business organization created by a
declaration of trust wherein property is conveyed to a trustee to
hold and manage for the benefit and profit of such persons as may
be or become the holders of transferable certificates evidencing
the beneficial interests in the trust estate. State St. Trust
Co. v. Hall, 41 N.E.2d 30, 34 (Mass. 1942). See generally Hynes
v. Commissioner, 74 T.C. 1266 (1980), and cases cited therein for
a discussion on business trusts. The purpose of a business trust
is to carry on a business or commercial activity for profit. Id.
- 5 -
Petitioner has not provided sufficient evidence
that the appointment of Mr. Adorno, as trustee or as an
agent of the trustee, was valid or authorized under the
terms of the respective trust indentures.
Upon the filing of respondent’s motion to dismiss, the Court
issued an order directing Adorno Asset to file an objection, if
any, to respondent’s motion, taking into account Rule 60, and to
attach to the objection a copy of the trust instrument or other
documentation identifying the fiduciary or other representative
with legal capacity to institute a case on behalf of Adorno
Asset.
D. Mr. Adorno’s Objection
Ultimately, the Court received an objection, leave for the
filing of which was granted, to respondent’s motion to dismiss.
Mr. Adorno signed the objection as the “Director of The Adorno
Asset Management Trust”. In the objection, Mr. Adorno contends
that he is Adorno Asset’s representative and authorized fiduciary
with “the authority to act as the Director of The Adorno Business
Company” and to sign on behalf of Adorno Asset. In support
thereof, Mr. Adorno attached to the objection a three-page
document entitled “The Adorno Asset Management Company,[6] Minutes
of Third Meeting, December 18, 1995” (third minutes). The third
minutes provide, in part, as follows:
6
The record indicates that The Adorno Asset Management
Trust and The Adorno Asset Management Company are one and the
same.
- 6 -
At this, the THIRD MEETING of the Board of Directors of
The Adorno Asset Management Company * * * a MAJORITY of
the Directors being present, by unanimous accord the
following was affirmed and ratified, viz:
29. It is hereby acknowledged that on December 14,
1995, Alicia Gloyeske[7] did resign as a Director
of The Adorno Asset Management Company, due to
circumstances beyond her control.
30. Minute 25[8] defining the incidents of the
employment of the Executive Director.
The Adorno Asset Management Company hereby retains the
services of Edwin R. Adorno to be the Executive
Director of the Company. The Executive Director shall
be employed as a Consultant and shall be responsible
for reporting his own Social Security and Income taxes.
The Directors shall contract the services of the
Executive Director to perform such duties for hire as
the Directors deem to be in the best interest of The
Adorno Asset Management Company. * * *
ARTICLE I - THE DUTIES OF THE EXECUTIVE DIRECTOR SHALL
BE TO:
A. Manage the day to day business affairs of The
Adorno Asset Management Company * * *
* * * * * * *
/s/
Edwin R. Adorno, Director
The third minutes do not list the name of a “trustee” for Adorno
Asset nor make any reference to a “trustee”.
7
According to Mr. Adorno’s testimony, Alicia Gloyeske (Ms.
Gloyeske) is an attorney who set up the trust. Mr. Adorno,
however, refused to provide additional details about Ms.
Gloyeske’s role as the attorney other than to repeatedly state
that “I stand by my stipulations and all the affidavits that are
there”.
8
Minute 25 is not otherwise identified in, or a part of,
the record.
- 7 -
The objection also challenges respondent’s authority to
determine a deficiency against Adorno Asset because “IRR
301.7701-4(b) clearly states that: there is another entity that
is like a trust, but it is not recognized (not known to exist) as
a trust for internal revenue purposes”.
E. Respondent’s Response
At the Court’s direction, respondent filed a response to the
foregoing objection. Respondent contends that the third minutes
do not establish that Adorno Asset appointed Mr. Adorno as its
trustee under Illinois law, and, therefore, Mr. Adorno is not
authorized to act on behalf of Adorno Asset.
Upon the filing of respondent’s response, the Court issued
an order directing both parties to file certain documents with
the Court. Pursuant to the Court’s order, respondent filed,
inter alia, a complete copy of a Form 1041, U.S. Income Tax
Return for Estates and Trusts (Form 1041), filed in the name of
Adorno Asset for 1998.9 The Form 1041, which was executed by Mr.
Adorno on September 15, 1999, lists the date the entity was
created as January 1, 1996.10
9
Attached to the Form 1041 was a Schedule K-1,
Beneficiary’s Share of Income, Deductions, Credits, etc.,
indicating the beneficiary as “Pacare International Company,
Beleeze [Belize]” (Pacare). In response to the Court’s questions
concerning Pacare, Mr. Adorno was not aware of, could not recall,
and was not familiar with the name Pacare.
10
According to the record, Adorno Asset’s only business
(continued...)
- 8 -
F. Mr. Adorno’s Response
Specifically, the Court ordered Adorno Asset to produce
(1) a complete copy of the organizational document(s) related to
the creation of petitioner; (2) a complete copy of all the
minutes that preceded in time the “Minutes of Third Meeting -
December 18, 1995” that was attached to petitioner’s Objection
filed September 3, 2002; and (3) any and all other documentation
identifying the fiduciary or other representative thought to have
legal capacity to institute the present case on behalf of
petitioner.
Ultimately, the Court received a response, leave for the
filing of which was granted, to its order for document
production. Mr. Adorno signed the response as “Edwin R. Adorno,
Trustee, Adorno Asset Management Trust”.11 Mr. Adorno attached
to his response, inter alia, a copy of an nine-page purported
trust instrument dated December 6, 1995 (purported trust
instrument), a four-page document entitled “The Adorno Asset
Management Company, Minutes of First Meeting, December 6, 1995”
10
(...continued)
activity is collecting rent from The Adorno Business Company for
use of a used car lot. See infra notes 12, 14, 16.
11
This was the first time in the record that Mr. Adorno
claimed to be the purported trustee of Adorno Asset. At all
other relevant times, Mr. Adorno claimed to be the director,
fiduciary, legal representative, or executive director of Adorno
Asset.
- 9 -
(first minutes), and a notarized affidavit dated October 17,
2002.
The purported trust instrument12 provides, in part, as
follows:
COMMON LAW BUSINESS ORGANIZATION
THIS COMMON LAW CONTRACT IN THE FORMAT OF AN IRREVOCABLE
DECLARATION OF TRUST AUTHORIZES ITS DIRECTORS TO OPERATE UNDER
THE NAME OF
The Adorno Asset Management Company
(referred to as the company)
DATED December 6, 1995
THIS agreement, conveyance and acceptance is made
and entered into at the time and on the date appearing
in the acknowledgment hereto attached, by and between
Alicia Gloyeske who drafted the Common Law Business
Organization DOCUMENTS as THE CREATOR HEREOF and THE
OFFEROR HEREIN and Edwin R. Adorno, as the INVESTOR AND
OFFEREE HEREIN and Alicia Gloyeske ACCEPTOR hereof who
shall compose the Board of Directors and Executive
Officers for conducting said business.
The Creator hereby constitutes and appoints the
above designated Director to be, in fact, Director of
the Company hereby created and established. The
investor for and in consideration of the objects and
purposes herein set forth, the cash sum of Ten Dollars
in hand paid and other considerations of value, the
receipt of which is hereby acknowledged, does hereby
agree to sell, assign, convey, and deliver unto said
Director, who are to hold legal title in fee simple.
* * * * * * *
Directors shall be not less than one in number, but may
be increased for practical reasons beneficial to the
Company. The Director herein mentioned by name, or
his/her successors elected to fill vacancies, shall
12
The provisions of the purported trust instrument are
substantially identical to the purported trust instrument in The
Adorno Bus. Co. v. Commissioner, T.C. Memo. 2003-126. See infra
note 16.
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hold office, have and exercise collectively the
exclusive management and control of the Company
property and business affairs.
* * * * * * *
PROVIDED FURTHER, that in the event of death, removal
from office, or resignation, the Directors shall
appoint or elect a successor by the unanimous
concurrence of the remaining Directors. Should the
entire Board of Directors become vacant, persons named
in the minutes of The Adorno Asset Management Company
as successor Director(s) are hereby appointed to that
position, otherwise a Court of Equity may appoint one
Director, who, in turn, shall appoint the additional
Directors. * * *
The signing and acknowledging of this Agreement by the
hereinabove appointed Director, or the signing and
acknowledging of appropriate Minutes by Directors
subsequently elected or appointed, shall constitute
their acceptance of The Adorno Asset Management Company
and the Company property * * *
* * * * * * *
POWERS OF DIRECTORS: Directors may do anything any
individual may legally do in any state or country,
subject to the restrictions herein noted. They shall
continue in business, conserve the property,
commercialize the resources, extend any established
line of business in industry or investment, as herein
especially noted, at their discretion, for the benefit
of The Adorno Asset Management Company, such as viz:
buy, sell, or lease real estate for the surface or
mineral rights, buy or sell mortgages, securities,
bonds, notes, leases of all kinds, contracts or credits
of any form, patents, trademarks, or copyrights buy,
sell, or conduct mail-order business, or branches
thereof, operate stores, shops, factories, warehouses
or other trading establishments or places of business
of any kind, construct, buy, sell, lease, or rent
suitable buildings or other places of business,
advertise different articles or business projects,
borrow money for any business project, pledging the
Company property for the payment thereof, hypothecate
assets, property, or both, of the Company in business
projects, own stock in, or entire charters of
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corporations, or other such properties, companies, or
associations as they may deem advantageous.
* * * * * * *
OFFICERS AND MANAGEMENT: The Directors may in their
discretion elect among their number an Executive
Director, Secretary Director, and Treasurer Director
* * *. Directors may hold two or more offices
simultaneously * * *
* * * * * * *
IN WITNESS WHEREOF the Creator hereof and Investor
hereto and the Acceptors hereof * * * have hereunto set
their hands and seals * * *
/s/
Alicia Gloyeske, Creator
/s/
Edwin R. Adorno, Investor
/s/
[13]
Alicia Gloyeske, Director
The purported trust instrument does not list the name of a
“trustee” for Adorno Asset nor make any reference to a “trustee”.
Further, none of the provisions of the purported trust instrument
grant the director the power to litigate on behalf of Adorno
Asset.
13
We note that the trust instrument was notarized by a
Lorenzo Fiol (Mr. Fiol). At the beginning of the hearing, Mr.
Adorno appeared at counsel table with (Mr. Fiol), whom Mr. Adorno
identified as his accountant. The Court directed Mr. Fiol to sit
in the gallery behind counsel table. However, Mr. Adorno
persisted to disrupt the proceedings by communicating with Mr.
Fiol over the gallery railing, whereupon the Court directed Mr.
Fiol to sit in the rear of the courtroom.
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The first minutes14 provide, in part, as follows:
At this, the FIRST MEETING of the BOARD OF Directors of
The Adorno Asset Management Company * * *. All
Directors being present, by unanimous accord the
following was affirmed and ratified, viz:
1. That, pursuant to the request and declaration of
Alicia Gloyeske, on this date, a Contract Creating
This Entity creating The Adorno Asset Management
Company, (A Common Law Business Organization) was
duly executed, acknowledging Alicia Gloyeske, it’s
Director, and the above named person by their
signature evidenced the acceptance of the duties,
obligations and faithful performance of said
Company.
* * * * * * *
3. However, in order to acquire a proper [employer
identification] number, the Director hereby
changes the name of The Adorno Asset Management
Company, by substituting the word “Trust” for the
word “Company”.
* * * * * * *
/s/
Alicia Gloyeske, Director
The first minutes do not list the name of a “trustee” for Adorno
Asset nor make any reference to a “trustee”.
The affidavit provides, in part, as follows:
I, Edwin Adorno, * * * state as follows based on my
personal knowledge:
1. I am trustee of the Adorno Business Company
lawfully authorized to represent and act on behalf
of Adorno Business Company.
14
The first minutes are substantially similar to the first
minutes in The Adorno Bus. Co. v. Commissioner, T.C. Memo. 2003-
126. See infra note 16.
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* * * * * * *
10/17/02 /s/
Date: Edwin Adorno, Trustee
Adorno Business Company
The affidavit does not list the name of a “trustee” for Adorno
Asset nor make any reference to Adorno Asset’s purported trustee.
Mr. Adorno also filed a supplemental objection with his
response stating that he is the “trustee” of Adorno Asset and
attesting to his capacity and authority to act on behalf of
Adorno Asset. In addition, Mr. Adorno submitted a “motion to
vacate claims, motion for summary judgment and complaint under
authority of 26 U.S.C. 7433, 7214(a)”, which the Court filed as a
Motion to Dismiss, challenging respondent’s authority to assess
tax against Adorno Asset and stating that he is the trustee of
Adorno Asset.15
G. Hearing on Respondent’s Motion
This matter was called for hearing at the Court’s trial
session in Chicago, Illinois.16 Counsel for respondent appeared
at the hearing and offered argument and evidence in support of
respondent’s motion to dismiss. Specifically, respondent
15
The Court denied Mr. Adorno’s motion by order dated Nov.
6, 2002.
16
This case was called for hearing with a related case in
which Mr. Adorno also filed a petition purportedly on behalf of a
so-called trust, which case is also being dismissed on the ground
that it was not filed by a proper party. See The Adorno Bus. Co.
v. Commissioner, T.C. Memo. 2003-126. Mr. Adorno himself also
has a case pending before the Court assigned docket No. 9459-02.
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challenges the validity of all of the documents submitted by Mr.
Adorno and contends that these documents do not demonstrate Mr.
Adorno’s current representative capacity as trustee. Mr. Adorno
appeared pro se, purportedly on behalf of Adorno Asset. Offering
no evidence to supplement the previously submitted documents, he
asserted that “the minutes elected me as director” and “I stand
by my stipulations and affidavits that are in the Court’s [sic]”.
H. Post-Hearing Memorandum Briefs
At the conclusion of the hearing, the Court directed the
parties to file memorandum briefs in support of their respective
positions. Respondent complied with this order, but Mr. Adorno
failed to do so.
Discussion
According to respondent, Adorno Asset failed to show that
Mr. Adorno is a proper party authorized to act on its behalf.
Respondent asserts that as a result, no valid petition has been
filed and the Court must dismiss this case for lack of
jurisdiction. We agree.
It is well settled that the taxpayer has the burden of
affirmatively establishing all of the facts giving rise to our
jurisdiction. See Patz Trust v. Commissioner, 69 T.C. 497, 503
(1977); Fehrs v. Commissioner, 65 T.C. 346, 348 (1975); Wheeler’s
Peachtree Pharmacy, Inc. v. Commissioner, 35 T.C. 177, 180
(1960); Natl Comm. To Secure Justice v. Commissioner, 27 T.C.
- 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...)
- 16 -
and Trustees Act does not grant the power to sue on behalf of a
trust to a director, a fiduciary, or any other legal
representative. See Restatement, Trusts 2d, sec. 16A (1959)
(“The officers and directors of a corporation, although they are
fiduciaries, are not trustees.”). In the present case, Adorno
Asset has failed to provide the Court with the documentary
evidence necessary to support its contention that Mr. Adorno is
its duly appointed trustee.
As previously discussed, Adorno Asset is purportedly an
irrevocable trust wherein Ms. Gloyeske is the
“Creator”/”Offeror”/”Acceptor” and Mr. Adorno is the
“Investor”/“Offeree”. According to the purported trust
instrument, Ms. Gloyeske was specifically designated as
“director” of Adorno Asset. However, no provision of the
purported trust instrument appoints or designates Ms. Gloyeske,
or anyone else, “trustee” for Adorno Asset.
According to the third minutes, however, Ms. Gloyeske
resigned as director. Ms. Gloyeske failed to appoint a successor
director, but the third minutes purported to retain “the services
of Edwin R. Adorno to be the Executive Director of the Company”
pursuant to “Minute 25”. We remain suspect, however, that this
18
(...continued)
see also United States ex rel. Mosay v. Buffalo Bros. Mgmt., 20
F.3d 739, 742 (7th Cir. 1994) (“a trustee is the one who has the
legal right to sue”).
- 17 -
statement purportedly appoints Mr. Adorno “successor director”,
let alone “trustee”, because the record is devoid of “Minute 25”.
Further, the third minutes appear to suggest that Adorno Asset
hired Mr. Adorno in an employment capacity as executive director.
Assuming arguendo that Mr. Adorno was properly appointed
executive director, however, that does not confer upon him the
legal status as trustee for Adorno Asset.
The purported trust instrument does not define the term
“director”, but it indicates that the director or directors
comprise the “Board of Directors” with authority to “exercise
collectively the exclusive management and control of the Company
property and business affairs”. Further, the purported trust
instrument does not provide the director with the authority to
institute legal proceedings on behalf of Adorno Asset.19 The
specific duties, powers, and responsibilities set forth in the
purported trust instrument are associated with the day-to-day
management affairs of the business. Thus, the director’s
responsibilities appear to be nothing more than those of a
business manager. We find it difficult to accept that the title
“director” confers the legal status of trustee on Mr. Adorno.
Indeed, the first time Mr. Adorno claimed to be trustee for
Adorno Asset is in his response dated October 17, 2002, to the
Court’s order for document production evidencing Mr. Adorno’s
19
See 760 Ill. Comp. Stat. Ann. 5/4.11 (West 1992).
- 18 -
capacity as the purported “trustee” for Adorno Asset. With the
exception of the response, Mr. Adorno continually referred to
himself as director and signed all relevant documents as director
of Adorno Asset. Without clear evidence in the purported trust
instrument, we are unpersuaded that the term “director” is
synonymous with the term “trustee” to accord Mr. Adorno the
status of trustee. Accordingly, we conclude that Mr. Adorno is
not the duly appointed trustee of Adorno Asset pursuant to
Illinois law.
In the absence of any persuasive basis for concluding that
Mr. Adorno was duly appointed trustee of Adorno Asset, we shall
dismiss this case for lack of jurisdiction consistent with
respondent’s motion.
All of the arguments and contentions that have not been
specifically analyzed herein have been considered, but they do
not require any further discussion.
In order to give effect to the foregoing,
An order of dismissal for
lack of jurisdiction will be
entered.