                    T.C. Summary Opinion 2002-102



                       UNITED STATES TAX COURT



                  JAMES T. HIGDON, Petitioner v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 239-02S.                Filed August 6, 2002.


     James T. Higdon, pro se.

     Nancy W. Hale, for respondent.



     LARO, Judge:    This case was heard pursuant to section

7463.1   Respondent moves the Court to dismiss the portion of the

case relating to 1997 for lack of jurisdiction and to strike

those portions of the pleadings pertaining to said year.

Respondent alleges that no deficiency in tax for 1997 has been



     1
       Section references are to the applicable versions of the
Internal Revenue Code. Rule references are to the Tax Court
Rules of Practice and Procedure.
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determined over which the Court has jurisdiction and that no

notice of deficiency has been sent to petitioner.   Petitioner

objects to respondent’s motion but does not state any reason or

authority which would give us jurisdiction.

                            Background

     Petitioner petitioned this Court to redetermine a deficiency

of $31,727 in his 1998 Federal income tax and additions thereto

of $4,729.27, $2,101.90, and $899,97 under sections 6651(a)(1),

6651(a)(2), and 6654(a), respectively.   Petitioner resided in

Jacksboro, Tennessee, when his petition was filed with the Court.

     Petitioner did not file a Federal income tax return for

1997.   On or about October 16, 2001, petitioner requested a

refund for 1997 in the amount of $17,607.   Respondent denied this

request because, he determined, it was outside of the statutory

period to file for a refund.    Respondent has not mailed a notice

of deficiency to petitioner with respect to 1997.   Petitioner

alleges that respondent should have determined an overpayment in

petitioner’s Federal income tax return for 1997 before

calculating a deficiency for 1998, in order to net the 1998

deficiency against the 1997 overpayment.

                            Discussion

     The party requesting that the Court decide an issue bears

the burden of proving that we have the requisite jurisdiction to

decide that issue.   See Cassell v. Commissioner, 72 T.C. 313,
                                - 3 -

317-318 (1979); Ronald R. Pawlak, P.C. v. Commissioner, T.C.

Memo. 1995-7; McGarvin v. Commissioner, T.C. Memo. 1994-410.      We

are guided by Rule 13(a), which generally provides that “the

jurisdiction of the Court depends * * * upon the issuance by the

Commissioner of a notice of deficiency in income, gift, or estate

tax”.    See also Stewart v. Commissioner, T.C. Memo. 1998-319.

     Here, respondent has only determined a deficiency in

petitioner’s 1998 Federal income tax, and respondent has only

issued a notice of deficiency to petitioner for that year.

Although petitioner’s claim with respect to 1997 is associated

with income taxes, the subject matter over which we generally

have jurisdiction, respondent has not issued a notice of

deficiency to petitioner for that year.2   Furthermore, section

6214(b) provides:

          Jurisdiction over other years and quarters. The
     Tax Court in redetermining a deficiency of income tax
     for any taxable year or of gift tax for any calendar
     year or calendar quarter shall consider such facts with
     relation to the taxes for other years or calendar
     quarters as may be necessary correctly to redetermine
     the amount of such deficiency, but in so doing shall
     have no jurisdiction to determine whether or not the
     tax for any other year or calendar quarter has been
     overpaid or underpaid.




     2
       Although the Court would have jurisdiction to determine an
overpayment for 1997 had a notice of deficiency been issued for
that year (when 1998 notice was issued), the limitation of sec.
6512(b)(3) would have prevented its crediting to 1998 tax in any
event.
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Therefore, even if petitioner did overpay his 1997 tax, a matter

as to which we express no opinion, we do not have jurisdiction to

determine any overpayment for that year.     See Stewart v.

Commissioner, supra.   Petitioner’s request to the Court to

determine an overpayment in tax for 1997 in order to redetermine

a deficiency in 1998 is expressly beyond the Court’s

jurisdiction.

                                            An appropriate order will

                                       be issued granting

                                       respondent’s motion to dismiss

                                       for lack of jurisdiction and

                                       to strike the related portions

                                       of the pleadings.
