                        T.C. Memo. 1997-433



                      UNITED STATES TAX COURT



                  ERIC JENNINGS, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent




     Docket No. 4802-97.                Filed September 23, 1997.



     Eric Jennings, pro se.

     Guy A. Bracuti and W. Mark Scott, 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)(4) of the Internal Revenue Code of 1986, as amended, and
                               - 2 -

Rules 180, 181, and 183.1    The Court agrees with and adopts the

Opinion of the Special Trial Judge, which is set forth below.

     This case is before the Court on petitioner's Motion for

Leave to File Amended Pleading, filed pursuant to Rule 41.

Petitioner contends that justice requires that he be permitted to

file an amended petition in order to place in issue an additional

taxable year.   Respondent contends that petitioner's motion seeks

to confer jurisdiction over a taxable year which otherwise would

not come within the Court's jurisdiction under the petition as on

file and in respect of which the 90-day period for petitioning

the Court expired before the motion was filed.

Background

     At the time the petition was filed with the Court,

petitioner resided in Arlington, Texas.

     On or about December 18, 1996, respondent sent notices of

deficiency to petitioner.    The first notice, which was dated

December 18, 1996, determined a deficiency in income tax,

together with an addition to tax and an accuracy-related penalty,

for the taxable year 1992.    The second notice, which was also

dated December 18, 1996, determined deficiencies in income taxes,

together with an addition to tax and accuracy-related penalties,

for the taxable years 1993 and 1994.

     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.
                                 - 3 -

       The amounts of the deficiencies, additions to tax, and

accuracy-related penalties that were determined by respondent in

the two notices of deficiency are as follows:


Taxable Year        Deficiency      Addition to    Penalty
                                    Tax            Sec. 6662
                                    Sec. 6651

1992                $41,489         $8,105          $8,298


1993                 47,492          9,590           9,498
1994                 54,799               ---       10,960


       The adjustments to income that gave rise to the deficiencies

that were determined by respondent in the two notices of

deficiency were as follows:

Adjustments              1992               1993        1994

Const. dividends    $111,953        $125,237       $139,462
Rental income          9,447             11,735      16,943
Itemized deducts.      7,297              2,584       3,184
Exemptions             3,772              3,290       2,107



       Respondent issued two notices of deficiency because the

notice for the taxable year 1992 was based on a different filing

status than was the notice for the taxable years 1993 and 1994.

Thus, for the taxable year 1992, respondent determined that

petitioner's filing status was married filing separately, whereas
                                     - 4 -

for the taxable years 1993 and 1994, respondent determined that

petitioner's filing status was single.          See sec. 1(c) and (d).

       Petitioner received both notices of deficiency on or about

December 23, 1996.

       On March 13, 1997, petitioner filed a petition (the

Petition) with the Court.       Paragraph 1. of the Petition states

that petitioner disagrees with the deficiencies for the taxable

years 1993 and 1994.      Paragraph 3. of the Petition states that

petitioner disputes the following:

Taxable Year Disputed     Deficiency Disputed        Addition/Penalty Disputed


                                                     [1]
1993                      $47,492                       $19,088
1994                        54,799                         10,960


        1
          This figure represents the sum of $9,590, the addition to tax under
        sec. 6651, and $9,498, the accuracy-related penalty under
        sec. 6662.

Petitioner attached to the Petition a complete copy of the notice

of deficiency for the taxable years 1993 and 1994.             Petitioner

did not attach to the Petition a copy of the notice of deficiency

for the taxable year 1992, nor did petitioner place in dispute

such taxable year in the Petition.           In fact, neither the taxable

year 1992 nor the deficiency, addition to tax, or accuracy-

related penalty determined by respondent for that year is

discussed or even mentioned in the Petition.

       On June 23, 1997, petitioner filed his Motion for Leave to

File Amended Pleading and lodged an Amended Petition (the Amended
                               - 5 -

Petition).    Although no notice of deficiency is attached to the

Amended Petition as an exhibit, the Amended Petition seeks to

place in dispute the taxable year 1992.    In this regard, the

Amended Petition expressly mentions the taxable year 1992 and

expressly disputes the deficiency, addition to tax, and accuracy-

related penalty determined by respondent for that year.

     Respondent objects to the granting of petitioner's motion

for leave because, in respondent's view, to do so would confer

jurisdiction over a taxable year that otherwise would not come

within the Court's jurisdiction under the petition as on file and

in respect of which the statutory period for petitioning the

Court expired before the motion was filed.

Discussion

     We begin our analysis with Rule 41(a), which governs

amendments to pleadings.    As relevant herein, Rule 41(a) provides

as follows:

          A party may amend a pleading * * * only by leave
     of Court * * * and leave shall be given freely when
     justice so requires. No amendment shall be allowed
     after expiration of the time for filing the petition,
     however, which would involve conferring jurisdiction on
     the Court over a matter which otherwise would not come
     within its jurisdiction under the petition as then on
     file.* * *

     This Court has been liberal in granting taxpayers leave to

amend in order to correct technical defects related to the

requirements prescribed by our Rules governing the form and

content of petitions.    O'Neil v. Commissioner, 66 T.C. 105, 107-
                               - 6 -

108 (1976).   However, we may not permit a petition to be amended

if the amendment seeks to place in dispute an additional taxable

year in respect of which the statutory period for filing a

petition has expired.    InverWorld, Ltd. v. Commissioner, 98 T.C.

70, 75 (1992), affd. 979 F.2d 868 (D.C. Cir. 1992); Normac, Inc.

v. Commissioner, 90 T.C. 142, 149 (1988); O'Neil v. Commissioner,

supra.

     We apply an objective test in order to distinguish between

an amendment seeking to correct a technical defect and an

amendment seeking to place an additional taxable year in dispute.

Thus, a petition must contain objective facts indicating that a

deficiency for a particular taxable year is being contested

before such petition will be treated as a petition for that

particular taxable year.     InverWorld, Ltd. v. Commissioner,

supra at 75; Normac, Inc. v. Commissioner, supra at 147-148;

O'Neil v. Commissioner, supra at 107; see Hill v. Commissioner,

T.C. Memo. 1988-198; Franks v. Commissioner, T.C. Memo. 1986-470,

affd. without published opinion 828 F.2d 23 (9th Cir. 1987).

     In the present case there are no objective facts appearing

in the Petition to even suggest that the taxable year 1992 is

being contested.   Rather, the objective facts appearing in the

Petition demonstrate that only the taxable years 1993 and 1994

are being contested.    Thus, the Petition refers to 1993 and 1994

as the only taxable years in dispute.   Moreover, only the notice
                               - 7 -

of deficiency for 1993 and 1994 is attached to the Petition as an

exhibit.    Finally, only the amounts of the deficiencies, addition

to tax, and penalties for 1993 and 1994 are identified in the

Petition as in dispute.   Indeed, there is nothing within the four

corners of the Petition to indicate that respondent even

determined a deficiency for 1992.

     In view of the foregoing, we hold that the Petition was

filed only in respect of the taxable years 1993 and 1994.

Accordingly, we analyze petitioner's motion for leave as one

seeking to amend the petition to place an additional taxable year

in issue.   We therefore turn to the scope of this Court's

jurisdiction.

     The Tax Court is a court of limited jurisdiction, and we

have only such jurisdiction as the Congress has chosen to confer

upon us by statute.   Sec. 7442; Commissioner v. Gooch Milling &

Elevator Co., 320 U.S. 418, 420-422 (1943); Medeiros v.

Commissioner, 77 T.C. 1255, 1259 (1981).    In a deficiency action,

our jurisdiction depends on the issuance of a valid notice of

deficiency and a timely filed petition.    Rule 13(a), (c); Monge

v. Commissioner, 93 T.C. 22, 27 (1989); Normac, Inc. v.

Commissioner, supra at 147.

     Petitioner argues that respondent should have issued a

single notice for 1992, 1993, and 1994.    However, petitioner

cites no rule of law, and we know of none, requiring respondent
                              - 8 -

to issue a single notice when determining deficiencies for more

than one taxable year.   See sec. 6212(a); see also Franks v.

Commissioner, supra (involving essentially similar notices for

two different taxable years), affd. without published opinion 828

F.2d 23 (9th Cir. 1987).   Further, respondent issued one notice

for 1992 and a second notice for 1993 and 1994 because the

deficiency for 1992 was determined by reference to a different

filing status than were the deficiencies for the taxable years

1993 and 1994.   In short, we are satisfied that both the notice

of deficiency for 1992 and the notice of deficiency for 1993 and

1994 were valid.

     Further, we are satisfied that the notice of deficiency for

the taxable year 1992 was sent on or about December 18, 1996.2

Accordingly, a petition contesting that year was required to be

filed within 90 days thereafter.   Secs. 6213(a), 7502.   However,

petitioner did not file his motion for leave until June 23, 1997,

a date well after the expiration of the critical 90-day period.

Accordingly, we lack jurisdiction over the taxable year 1992.

     In view of the foregoing, we will not grant petitioner's

motion for leave because such action "would involve conferring


     2
          Respondent did not introduce Postal Service Form 3877,
or the equivalent, in order to prove the date of mailing of
either notice of deficiency. However, in view of petitioner's
admission concerning the receipt of the notices of deficiency on
or about Dec. 23, 1996, we are satisfied that both notices were
in fact mailed on or about Dec. 18, 1996. Cf. Magazine v.
Commissioner, 89 T.C. 321 (1987).
                              - 9 -

jurisdiction on the Court over a matter which otherwise would not

come within its jurisdiction under the petition as then on file."

Rule 41(a).

     Petitioner seeks to overcome the foregoing analysis by

arguing that for purposes of Rule 41(a), the "matter" before the

Court is "the matter of 'Eric Jennings v. Commissioner of

Internal Revenue'".   We disagree.    Insofar as this case is

concerned, the "matter" clearly contemplated by Rule 41(a) is

respondent's deficiency determination for the taxable year 1992.

In this regard, the Supreme Court has held that "Each year is the

origin of a new liability and of a separate cause of action."

Commissioner v. Sunnen, 333 U.S. 591, 598 (1948).     Stated

otherwise, our jurisdiction is year specific.

     Petitioner also seeks to overcome the foregoing analysis by

arguing that the adjustments giving rise to the deficiency for

1992 fall in the same categories as those giving rise to the

deficiencies for 1993 and 1994.    Essentially the same argument

was addressed, and rejected, in Franks v. Commissioner, supra.

     In Franks v. Commissioner, supra, the Commissioner issued

two notices of deficiency, one for the taxable year 1980 and the

other for the taxable year 1981.     Both notices made adjustments

primarily related to the same investments of the taxpayer.

Thereafter, the taxpayer filed a petition that referenced only

the taxable year 1981; further, the taxpayer only attached as an
                             - 10 -

exhibit to his petition a copy of the notice for 1981.    In

contrast, the taxpayer did not mention the taxable year 1980 in

his petition, nor did the taxpayer attach a copy of the notice

for 1980.   Subsequently, the taxpayer moved to amend his petition

to include the taxable year 1980.     The Court ultimately concluded

that jurisdiction was lacking as to the taxable year 1980 and

dismissed the case as to that year because the petition failed to

put that year into issue, and the taxpayer's motion for leave to

amend the petition was filed more than 90 days after the notice

of deficiency for 1980 was issued.

     Although petitioner admits that he "inadvertently" failed to

include the taxable year 1992 in the Petition, petitioner argues

that such failure is principally attributable to "confusion"

created by the issuance of two notices of deficiency and by

respondent's allegedly stapling the two notices together.3

However, we need not assign or apportion any fault related to

petitioner's failure to include the taxable year 1992 in the

Petition, because neither estoppel nor other equitable

considerations afford any basis for us to assume jurisdiction as

to a taxable year in the absence of a timely filed petition as to



     3
          As previously stated, a complete copy of the notice of
deficiency for 1993 and 1994 was attached as an exhibit to the
Petition. If the notice for 1992 was stapled to the notice for
1993 and 1994, we fail to understand how petitioner could have
attached the latter, but not the former, as an exhibit to the
Petition.
                             - 11 -

that year.   Sec. 7442; Hesse v. Commissioner, T.C. Memo. 1997-

333, and cases cited therein at note 6.

     We have considered petitioner's remaining arguments and find

them without merit.

Conclusion

     We lack jurisdiction over the taxable year 1992.

Accordingly, petitioner's Motion for Leave to File Amended

Pleading will be denied.4

     To give effect to the foregoing,

                                      An order denying petitioner's

                               motion will be issued.




     4
          We note that although petitioner cannot pursue a case
in this Court as to the taxable year 1992, petitioner is not
without a judicial remedy. Thus, petitioner may pay the tax,
file a claim for refund with the Internal Revenue Service, and,
if the claim is denied, sue for a refund in the appropriate
Federal District Court or the United States Court of Federal
Claims. McCormick v. Commissioner, 55 T.C. 138, 142 (1970).
