                   T.C. Memo. 1999-88



                 UNITED STATES TAX COURT



THOMAS GERALD ROOTS AND LINDA VESTA ROOTS, Petitioners
    v. COMMISSIONER OF INTERNAL REVENUE, Respondent



Docket No.   14438-98.                  Filed March 23, 1999.



     Petitioners move to dismiss for lack of
jurisdiction on the grounds that (1) the primary
adjustment in the notice of deficiency is wrong and (2)
the period of limitations on assessment expired before
the notice of deficiency was issued.

     1. Held: Neither of these matters goes to the
jurisdiction of this Court, and so petitioners' motion
to dismiss is denied.

     2. Held, further, treating petitioners' motion as
a motion for summary judgment on the limitations
question, there is a genuine issue of material fact (a
dispute about whether petitioners' purported signatures
on a Form 872 are genuine), and so petitioners are not
entitled to summary judgment.
                                  - 2 -


     Thomas Gerald Roots and Linda Vesta Roots, pro se.

     Mark A. Weiner, for respondent.



                           MEMORANDUM OPINION

     CHABOT, Judge:      This matter is before us on petitioners'

motion to dismiss for lack of jurisdiction.     As indicated infra,

we also consider whether petitioners are entitled to summary

judgment.

     We decide these matters on the basis of the parties'

pleadings and motion papers.

     Respondent determined a deficiency in Federal income tax and

additions to tax under sections 6651(a)(1)1 (failure to timely

file tax return) and 6662(a) (negligence, etc.) against

petitioners as follows:

                                    Additions to Tax
   Year     Deficiency       Sec. 6651(a)(1)    Sec. 6662(a)

   1991     $121,483            $30,371          $24,296

                               Background

     When the petition was filed in the instant case, petitioners

resided in Ventura, California.

     Petitioners filed their 1991 tax return on March 27, 1993.

A Form 872, extending to December 31, 1996, the time to assess


     1
          Unless indicated otherwise, all section references are
to sections of the Internal Revenue Code of 1986, as in effect
for the year in issue.
                               - 3 -


tax, was timely executed by petitioners on November 27, 1995, and

by respondent on December 6, 1995.     A second Form 872, extending

to December 31, 1997, the time to assess tax, was timely executed

by petitioners on October 15, 1996, and by respondent on October

24, 1996.

     Respondent asserts that a third Form 872, extending to June

30, 1998, the time to assess tax was timely executed by

petitioners on March 14, 1997, and by respondent on March 19,

1997.   Petitioners deny having executed this Form 872.   Indeed,

they assert that "each of them, to the best of their knowledge

and belief, [has] never been presented in any way, manner, shape,

or form, with a request to extend the time of statute [sic] till

6/30/98."

     Respondent sent a notice of deficiency to petitioners on

June 5, 1998.   Petitioners filed a timely petition from this

notice of deficiency on August 25, 1998.    It appears that the

major item of dispute on the merits is whether $511,522 of gain

on disposition of rental property is properly reportable for

1991, as respondent determined in the notice of deficiency, or

for 1992, as petitioners contend.

                            Discussion

     Petitioners' motion to dismiss for lack of jurisdiction

focuses on two matters, as follows:    (1) The notice of deficiency

erroneously determined that the income in question was reportable
                                - 4 -


for 1991 instead of 1992; and (2) the notice of deficiency was

untimely because the period for assessment had expired on

December 31, 1997, more than 5 months before the notice of

deficiency was issued.

1. Jurisdiction

     This Court's jurisdiction to redetermine a deficiency

depends on respondent's sending a notice of deficiency to a

taxpayer and that taxpayer's filing with this Court a timely

petition that we redetermine the deficiency determined against

that taxpayer in that notice of deficiency.    See Normac, Inc. &

Normac International v. Commissioner, 90 T.C. 142, 147 (1988),

and authorities there cited.    In the instant case, respondent did

determine a deficiency against petitioners for 1991 income tax

and additions to tax, and petitioners filed a timely petition,

asking this Court to redetermine that deficiency and those

additions to tax.

     This Court is not deprived of jurisdiction even if

respondent erred in one or more of the adjustments in the notice

of deficiency.    Jurisdiction depends on whether respondent

determined a deficiency, not on whether respondent was correct.

See, e.g., Bowman v. Commissioner, 17 T.C. 681, 685 (1951).

     Also, in a deficiency dispute the assertion of the bar of

the statute of limitations is an affirmative defense and not a

jurisdictional matter.    See Tapper v. Commissioner, 766 F.2d 401,
                                - 5 -


403 (9th Cir. 1985), affg. an order of this Court;     Columbia

Building, Ltd. v. Commissioner, 98 T.C. 607, 611 (1992).

       Thus, this Court does not lose jurisdiction of the instant

case whether or not petitioners are correct in their contentions

that (1) the notice of deficiency's major adjustment is

incorrect, and (2) the statute of limitations bars assessment of

a deficiency.    We have not found, sua sponte, any other basis for

questioning this Court's jurisdiction in the instant case.     See

Normac, Inc. & Normac International v. Commissioner, 90 T.C. at

146.

       As a result, we shall deny petitioners' motion to dismiss

for lack of jurisdiction.

2. Summary Judgment

       It is evident that the notice of deficiency (June 5, 1998)

was issued more than 3 years after petitioners filed their tax

return, March 27, 1993.    Section 6501(a) prohibits assessment of

a deficiency under these circumstances, unless there is an

exception to the general period of limitations.     Respondent's

only response to petitioners' statute of limitations contentions

is to rely on a chain of Forms 872.     See sec. 6501(c)(4).

       Because (1) the parties have "locked horns" on the statute

of limitations issue in the course of dealing with petitioners'

motion and (2) resolution of this issue in petitioners' favor

would avoid the necessity of considering the instant case on the
                                - 6 -


merits, we have decided to treat petitioners' motion as a motion

for summary judgment.

     Under Rule 121(b), Tax Court Rules of Practice and

Procedure, a motion for summary judgment shall be granted only if

(1) there is no genuine issue as to any material fact and (2) a

decision may be rendered as a matter of law.   Petitioners, as the

moving parties, have the burden of showing the absence of a

genuine issue as to any material fact; that is, all doubts as to

the existence of an issue of material fact must be resolved

against the movant.   See, e.g., Adickes v. Kress & Co., 398 U.S.

144, 157 (1970); Vallone v. Commissioner, 88 T.C. 794, 801

(1987).

     Respondent contends that there is a Form 872, executed

timely by petitioners and respondent, that extended to June 30,

1998, the time to assess tax.   Petitioners contend that they did

not execute that Form 872.   This is a genuine issue.   The matter

of fact thus disputed appears to control the entire statute of

limitations question; thus the fact disputed is a material fact.

There is a genuine issue as to a material fact.

     It follows that petitioners have failed to satisfy one of

the requirements for summary judgment, and so summary judgment

will not be granted to petitioners on the statute of limitations

issue.    Thus, petitioners' motion shall be denied, even if it is

treated as a motion for summary judgment.
                                 - 7 -


     The instant case is set for trial on the merits at the June

21, 1999, trial session of this Court scheduled for Los Angeles.

The statute of limitations issue has been raised, and so it is to

be tried unless the parties settle this issue or settle the

entire case.   If the parties fail to settle the matter, then they

are admonished to (1) consider the effect of section 6064,2 and

(2) comply with the requirements of the Standing Pre-Trial Order

as to expert witness reports.3



                                              An appropriate order will

                                         be issued denying petitioners'

                                         motion.




     2
          SEC. 6064.   SIGNATURE PRESUMED AUTHENTIC.

          The fact that an individual's name is signed to a
     return, statement, or other document shall be prima facie
     evidence for all purposes that the return, statement, or
     other document was actually signed by him.
     3
          The Standing Pre-Trial Order provides, in pertinent
part, as follows:

     Unless otherwise permitted by the Court upon timely
     request, expert witnesses shall prepare a written
     report which shall be submitted directly to the
     undersigned and served upon each other party at least
     30 days before the first day of the trial session. An
     expert witness' testimony may be excluded for failure
     to comply with this Order and the provisions of Rule
     143(f).
