                        T.C. Memo. 2008-256



                      UNITED STATES TAX COURT



                 RONALD D. FISHER, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 24062-07.               Filed November 17, 2008.



     Phillip H. Hamilton and Ebony R. Huddleston, for petitioner.

     James A. Kutten, for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION


     KROUPA, Judge:   This matter is before the Court on

respondent’s Motion to Dismiss for Lack of Jurisdiction and to

Strike as to the Taxable Year 2000.   We decide whether we have

jurisdiction over an overpayment, properly before the Court under

section 6512(b),1 after respondent has conceded the fraud penalty

     1
      All section references are to the Internal Revenue Code in
                                                   (continued...)
                                -2-

that justified the unlimited limitation period under section

6501(c) and the regular 3-year limitations period has expired.2

We conclude that we have jurisdiction to decide the case on the

merits, including a determination concerning the amount of any

overpayment for 2000.

                         FINDINGS OF FACT

     Petitioner resided in Illinois at the time he filed the

petition.   Petitioner submitted a Form 1040, U.S. Individual

Income Tax Return, for 2000 on August 10, 2001, before the

extended due date and then timely filed a Form 1040X, Amended

U.S. Individual Income Tax Return, claiming a $2,223 refund for

2000.

     Respondent issued petitioner a deficiency notice for 2000,

2003, and 2004 on September 24, 2007.    Respondent determined an

$11,994 deficiency in petitioner’s Federal income tax for 2000, a

$25,020 deficiency for 2003, and an $82,099 deficiency for 2004.

Respondent also determined an $8,130 fraud penalty under section

6663 for 2000, an $18,765 fraud penalty for 2003, and a

$61,574.25 fraud penalty for 2004.    In determining the fraud

penalty for 2000, respondent relied on the extended limitations

period under section 6501(c) for false and fraudulent returns.


     1
      (...continued)
effect for the years at issue, and all Rule references are to the
Tax Court Rules of Practice and Procedure, unless otherwise
indicated.
     2
      Tax may be assessed at any time in the case of a false and
fraudulent return filed with the intent to evade tax. Sec.
6501(c).
                                  -3-

Further, respondent denied petitioner’s timely refund claim for

2000 stating that, if petitioner contested the determinations in

the deficiency notice with this Court, he should include his

refund claim in the petition.

     Petitioner timely filed a petition for redetermination.

Petitioner asserted that respondent erred in determining

deficiencies and fraud penalties for 2000, 2003, and 2004 and in

disallowing his refund claim for 2000.

     Respondent conceded the fraud penalties and asserted in his

answer that the limitations period for 2000 expired before the

deficiency notice was issued.    He then brought the motion to

dismiss for lack of jurisdiction and to strike as to taxable year

2000, stating that this Court does not have jurisdiction over

2000 because the deficiency notice was issued after the

limitations period expired.   Respondent failed to provide any

legal authority supporting his motion, and petitioner objected,

asking the Court to deny respondent’s motion and find that we

have jurisdiction to determine the amount of overpayment for

2000.

                                OPINION

     The parties agree that the regular 3-year limitations period

under section 6501(a) for assessing a deficiency for 2000 expired

before respondent issued the deficiency notice.    The parties

disagree, however, whether this Court has jurisdiction to decide

the merits of petitioner’s claim for an overpayment.    We hold

that we have jurisdiction in this case under section 6512(b) and
                                  -4-

that we do not lose jurisdiction simply because respondent

conceded the fraud penalty that justified the unlimited

limitations period.

     We shall begin by describing the general principles of our

jurisdiction.   This Court is a court of limited jurisdiction and

may exercise jurisdiction only to the extent authorized by

Congress.   Naftel v. Commissioner, 85 T.C. 527, 529 (1985).    We

have jurisdiction to redetermine a taxpayer’s Federal tax

liabilities in a deficiency proceeding where the Commissioner has

issued a valid deficiency notice and the taxpayer has timely

filed a petition.     Secs. 6212 and 6213; Rule 13(a), (c);

Gustafson v. Commissioner, 97 T.C. 85, 89 (1991); Monge v.

Commissioner, 93 T.C. 22, 27 (1989).    We must dismiss a case in

which there is no valid deficiency notice.     Monge v.

Commissioner, supra at 27.     Respondent does not dispute that the

deficiency notice is valid.3    Accordingly, petitioner properly

invoked our jurisdiction by timely filing a petition for

redetermination of a deficiency under section 6213(a).

     Once we acquire jurisdiction to redetermine a deficiency, we

also have jurisdiction to determine the amount of any overpayment

of the same tax for the same taxable period.4    Sec.


     3
      The expiration of the sec. 6501(a) limitations period
before the mailing of the deficiency notice does not go to the
jurisdiction of this Court. United Bus. Corp. of Am. v.
Commissioner, 19 B.T.A. 809, 831-832 (1930), affd. 62 F.2d 754
(2d Cir. 1933).
     4
      There are certain exceptions, not relevant here, to our
jurisdiction under sec. 6512(b). See sec. 6512(b)(3) and (4).
                                -5-

6512(b); Russell v. United States, 592 F.2d 1069, 1071 (9th Cir.

1979); Naftel v. Commissioner, supra at 531.    This jurisdiction

is limited to the same taxable year or years represented in the

deficiency notice and for which the taxpayer has timely filed a

petition for redetermination.   Sec. 6512(b)(1),(3).   These

provisions generally ensure that, where the taxpayer has timely

filed a tax return and a deficiency notice has been issued, the

taxpayer can obtain a refund of any overpayment of tax.

Commissioner v. Lundy, 516 U.S. 235, 244 (1996).    Petitioner met

the section 6512(b) jurisdictional requirements when he timely

filed the petition with this Court.5    Accordingly, we conclude

that this Court had jurisdiction, at the time petitioner filed

the petition, to determine whether there was a deficiency for

2000 and whether there was an overpayment for 2000.

     We now consider whether subsequent acts cause us to lose

jurisdiction over a claim for an overpayment.    Generally, our

jurisdiction, once invoked, remains unimpaired until the

controversy is decided.   Freytag v. Commissioner, 110 T.C. 35, 39

(1998); Coninck v. Commissioner, 100 T.C. 495, 498 (1993); Naftel
v. Commissioner, supra at 529-530.     Respondent contends, however,

that even though we originally had jurisdiction to determine the

amount of any deficiency or overpayment for 2000, we lost

jurisdiction when he conceded the fraud penalty that justified


     5
      The look-back rules of sec. 6512(b)(3) do not pose a
jurisdictional hurdle as petitioner timely filed a return and
refund claim and respondent did not disallow the refund claim
before issuing the deficiency notice.
                                  -6-

the extended limitations period for the assessment of a

deficiency under section 6501(c).       We disagree.

     Our jurisdiction is based on the snapshot in time when

petitioner timely filed the petition.       We have determined that,

at that time, petitioner met all the jurisdictional requirements

of section 6512(b).    Respondent’s subsequent concession of the

fraud penalty, which resulted in a bar to assessment for 2000,

does not cause us to lose jurisdiction because our jurisdiction

does not depend on respondent’s ability to assess a deficiency.

See United Bus. Corp. of Am. v. Commissioner, 19 B.T.A. 809

(1930), affd. 62 F.2d 754 (2d Cir. 1933); Worden v. Commissioner,

T.C. Memo. 1994-193.    The statute of limitations is an

affirmative defense, and its application does not pose a

jurisdictional question when an overpayment claim is properly

before the Court.     Mackey v. Commissioner, T.C. Memo. 1991-149.

     We conclude that when we have jurisdiction under section

6512(b) over a claim for an overpayment, we do not lose that

jurisdiction when the Commissioner subsequently concedes the

fraud penalty and argues that the normal 3-year limitation period

bars assessment of a deficiency.    Accordingly, we will deny

respondent’s motion to dismiss for lack of jurisdiction and to

strike as to 2000.

     To reflect the foregoing,


                                        An appropriate order will
                                 be issued.
