Opinion
Docket No. 56044.
1957-02-26
NATIONAL COMMITTEE TO SECURE JUSTICE IN THE ROSENBERG CASE, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.
Milton H. Friedman, Esq., and Bernard Ades, Esq., for the petitioner. Richard G. Maloney, Esq., for the respondent.
Milton H. Friedman, Esq., and Bernard Ades, Esq., for the petitioner. Richard G. Maloney, Esq., for the respondent.
Where petitioner, a New York State unincorporated association, had apparently ceased to exist prior to the time its petition herein was filed by its former treasurer, held, the proceeding must be dismissed for lack of jurisdiction.
This proceeding involves the following deficiencies in income tax and additions to tax for failure to file returns:
+-------------------------------------------+ ¦Fiscal year ended ¦ ¦Additions to¦ +-------------------+----------+------------¦ ¦October 31 ¦Income tax¦tax ¦ +-------------------+----------+------------¦ ¦1952 ¦$15,373.99¦$3,843.49 ¦ +-------------------+----------+------------¦ ¦1953 ¦82,701.20 ¦16,540.24 ¦ +-------------------------------------------+
Petitioner concedes that if we find any deficiency in income tax, additions to tax under section 291(a) of the Internal Revenue Code of 1939 will be applicable thereto. At the hearing respondent moved to dismiss this proceeding for lack of jurisdiction, which motion we then took under advisement.
FINDINGS OF FACT.
Some of the facts have been stipulated and are hereby found.
Petitioner was organized on or about November 1, 1951.
No written articles of association were ever executed. During the tax years involved petitioner was an unincorporated association with its principal office at 1050 Sixth Avenue, New York, New York. It was conducted by an executive committee consisting of the following-named individuals:
Apparently a typographical error accounts for the statement in the stipulation of facts that petitioner was organized on ‘November 1, 1952.’
+-------------------------+ ¦Joseph Brainin ¦Chairman ¦ +---------------+---------¦ ¦Emily Alman ¦Treasurer¦ +-------------------------+
At the end of October 1953 petitioner ceased to function, closed its books, and formally went out of existence. No written instrument was executed on its dissolution. After its dissolution in October 1953 petitioner had no further meetings.
On May 13, 1954, income tax returns for the tax years involved were filed on behalf of petitioner with the director of internal revenue for the lower Manhattan district of New York. These returns were signed by ‘Joseph Brainin—Co-chairman’ and ‘Emily Alman,‘ as treasurer. The notice of deficiency covering the tax years involved was placed in the mail addressed to petitioner at 1050 Sixth Avenue, New York, New York, on October 26, 1954. On January 21, 1955, a petition, purporting to be filed on behalf of petitioner, was filed with the Tax Court assigning errors in respondent's determinations. The petition was signed by Bernard Ades as counsel for petitioner and contained the following verification:
STATE OF NEW YORK
COUNTY OF QUEENS ss:
Emily Alman, being duly sworn, says that she was the Treasurer of the National Committee to Secure Justice in the Rosenberg Case, above-named, which ceased to function in October 1953, and that she is duly authorized to verify the foregoing petition, that she has read the foregoing petition and is familiar with the statements contained therein, and that the statements contained therein are true, except those stated to be upon information and belief, and that those she believes to be true.
(sgd.) Emily Alman
OPINION.
OPPER, Judge:
At the conclusion of the hearing, respondent moved to dismiss this proceeding for lack of jurisdiction, stating as his reason that petitioner, an unincorporated association, had previously ceased to exist and could not be a proper party to institute this proceeding. The question was taken under advisement and has been argued in the briefs of the parties.
Petitioner's statement of the question thus put before us is the following taken from its brief:
Petitioner was an unincorporated association. There is nothing in the record to indicate the precise nature of the organization or the provisions made for dissolution. Unquestionably it ceased doing business on October 31, 1953 and to all intents and purposes it ceased to exist as an active organization. Whether it ceased to exist for legal purposes,— i.e. for purposes of suing and being sued— is a different question, the answer for which does not appear in the record. * * *
Petitioner, however, concludes that the burden of supplying the missing facts rests upon respondent, a conclusion which is erroneous under both the rules of the Tax Court and case authority. A proceeding in the Tax Court ‘shall be brought by and in the name of the person against whom the Commissioner determined the deficiency,'
the petition shall contain ‘(p)roper allegations showing jurisdiction in the Court,'
Rule 6, Tax Court Rules of Practice.
and the burden of proving that the Tax Court has jurisdiction over the proceeding is upon petitioner. See, e.g., Main-Hammond Land Trust, 17 T.C. 942, 957; Louisiana Naval Stores, Inc., 18 B.T.A. 533, 536.
Rule 7(c)(4)(B), Tax Court Rules of Practice, in effect when this petition was filed.
Furthermore, the Tax Court has no jurisdiction to entertain a proceeding purporting to be brought by a nonexistent party, S. Hirsch Distilling Co., 14 B.T.S. 1073; nor by a person whose authority is not shown, Coca-Cola Bottling Co., 22 B.T.A. 686. And questions of jurisdiction which go to the root of all subsequent action, see, e.g., Herbert Brush Mfg. Co., 22 B.T.A. 646, and should be disposed of at the threshold, see Gideon-anderson Co., 18 B.T.A. 329, 330, must be dealt with by the Tax Court, like other tribunals, on its own motion even if not raised by either party. Coca-Cola Bottling Co., supra, at 700. For this reason, if for no other, the notion that the burden was upon respondent to produce the necessary facts, or that the question cannot be considered because inadequately propounded by the pleadings, cf. Federal Rules of Civil Procedure, Rule 9(a), is mistaken.
The petition herein, though bearing the name of the party to whom the notice of deficiency was mailed, is verified by Emily Alman who states ‘that she was the Treasurer of the National Committee to Secure Justice in the Rosenberg Case, above-named, which ceased to function in October 1953’ and contains only the allegation that petitioner, during the tax years involved, ‘was an unincorporated association’ with principal offices in New York. Yet, when answering questions with respect to the status of petitioner, Mrs. Alman, the only witness called by either party, stated that when petitioner ceased to function ‘there was no written agreement. There was simply a decision to dissolve.’ This ‘decision to dissolve’ must have occurred prior to the mailing of the notice of deficiency and the filing of the petition herein, for petitioner held no meetings after October 1953. Petitioner cites no authority, and we find none, for the proposition that an unincorporated association in New York continues, after dissolution, to exist for the purpose of winding up its affairs. Indeed, the contrary appears more likely for such an association, unlike a corporation, is not regarded as a legal entity independent of its associates, see Ostrom v. Greene, 161 N.Y. 353, 55 N.E. 919; International Union, Etc. v. Air-cooled Motors, 284 App.Div. 835, 132 N.Y.S.2d 411, and its authority to sue or be sued in the name of its president or treasurer derives from the agency relationship inherent in its distinctive membership composition. See Solomon v. Union News Co., 102 N.Y.S.2d 975; Amalgamated Association, Etc. v. Casey, 134 N.Y.S.2d 343; Peckner v. Webb, 35 Misc. 291, 71 N.Y.S. 768. Without a proper showing of authority to institute this proceeding we must grant respondent's motion and dismiss. See Main-Hammond Land Trust, supra; S. Hirsch Distilling Co., supra.
Petitioner also insists: ‘If the petitioner had not been in existence after October 31, 1953 then * * * proceedings against it for assessment of a tax whether within the Treasury Department or any court would be impossible.’ Whether this statement is correct we have no occasion to consider. We have found no facts, nor has petitioner requested any findings, with respect to the merits of this case, and we do not reach them.
An order will be entered dismissing the proceeding for lack of jurisdiction.