                        T.C. Memo. 1996-404



                      UNITED STATES TAX COURT



                 LEONARD A. GROSS, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 24370-95.                     Filed August 28, 1996.



     Leonard A. Gross, pro se.

     James P. Thurston, for respondent.



                        MEMORANDUM OPINION

     GERBER, Judge:   Respondent moved for partial summary

judgment on the question of whether we have jurisdiction over

petitioner's 1991 tax year.   Respondent, in the notice of

deficiency in this case, mailed August 21, 1995 (August notice),
                               - 2 -

determined section 49751 excise tax deficiencies and section 6651

additions to tax for failure to file excise tax returns for the

taxable years 1991, 1992, 1993, and 1994.   About 6 months prior

to mailing the August notice, respondent issued a notice of

deficiency for petitioner's 1991 taxable year.   The prior notice,

mailed on February 6, 1995 (February notice), contained a

determination of an income tax deficiency and accuracy-related

penalty under section 6662 for petitioner's 1991 tax year.

Petitioner questioned the validity of the August notice in his

petition filed in this case.   The excise tax and income tax

deficiencies both arise from certain transactions involving

petitioner's pension plan; i.e., transfers deemed by respondent

to be taxable distributions of income to petitioner and to be

prohibited transactions to which an excise tax is applicable.2

     Rule 121(b) provides that a motion for summary judgment

shall be granted if the pleadings show that there is no genuine

issue as to any material fact and that a decision may be rendered

as a matter of law.3   Naftel v. Commissioner, 85 T.C. 527, 529

(1985).   The moving party bears the burden of proving that there

     1
       Section references are to the Internal Revenue Code as
amended and in effect for the period under consideration. Rule
references are to this Court's Rules of Practice and Procedure.
     2
       This case and the case petitioned from the February notice
have been consolidated for purposes of trial, briefing, and
opinion.
     3
       Petitioner, although given time to respond to respondent's
partial summary judgment motion, failed to do so.
                               - 3 -

is no genuine issue of material fact.    Marshall v. Commissioner,

85 T.C. 267, 271 (1985); Naftel v. Commissioner, supra at 529.

The facts are viewed in a light most favorable to the nonmoving

party.   Jacklin v. Commissioner, 79 T.C. 340, 344 (1982).       The

facts necessary to consider the question presented are contained

in pleadings and other documents in the record, and are not

controverted.

     We must consider whether respondent was entitled to mail

petitioner a second notice of deficiency concerning petitioner's

1991 taxable year.   If respondent was not entitled to do so, then

the August notice would not be valid as to petitioner's 1991 tax

year, and this Court would not possess jurisdiction over the 1991

excise tax deficiency.   Sec. 6213; Stamm Intl. Corp. v.

Commissioner, 84 T.C. 248, 252 (1985).   Questions of jurisdiction

must be decided whenever it appears that we may not have

jurisdiction.   Wheeler's Peachtree Pharmacy, Inc. v.

Commissioner, 35 T.C. 177, 179 (1960).

     Section 6212, in pertinent part, provides that if the

Commissioner "mailed to the taxpayer a notice of deficiency as

provided in subsection (a), and the taxpayer files a petition

with the Tax Court * * * the * * * [Commissioner] shall have no

right to determine any additional deficiency * * * of chapter 43

tax for the same taxable year".   We have interpreted the

prohibition in section 6212 as not applying to deficiencies based

on two different taxes based on two separate returns.      S-K
                                 - 4 -

Liquidating Co. v. Commissioner, 64 T.C. 713, 716 (1975)

(involving corporate income tax and withholding tax where the

same corporation was the withholding agent); Rowan Cotton Mills

Co. v. Commissioner, 1 T.C. 865 (1943) (income, excess profits,

and unjust enrichment tax), affd. on this issue 140 F.2d 277 (4th

Cir. 1944); Towe v. Commissioner, T.C. Memo. 1992-689 (income tax

and gift tax); see also Michael v. Commissioner, 75 F.2d 966, 969

(2d Cir. 1935) (transferee liability of a corporation and

individual income tax), affg. 22 B.T.A. 639 (1931).    The purpose

of section 6212(c) is "to prevent repetitious litigation with

respect to the same tax for the same year."   S-K Liquidating Co.

v. Commissioner, supra at 718.

     In this case, the notices of deficiency each concern a

different type of tax liability, which would emanate from

different returns, and concern taxable periods that are defined

differently.   Although the income tax and excise tax deficiencies

are based on the same underlying factual premise (transfers to

petitioner from his pension plan), they are distinct.   The

issuance of notices of deficiency by respondent is governed by

section 6212(c)(1).   That statutory provision restricts

respondent from determining an additional deficiency, in income

tax or of chapter 43 tax, for the same taxable year.    Respondent

determined an income tax deficiency for 1991 in the February

notice and an excise tax deficiency for 1991 in the August

notice.   Respondent did not determine an additional deficiency
                                 - 5 -

for 1991 in either the income or excise tax.     The second notice

for 1991 was, therefore, not prohibited under section 6212.

     Liability for section 4975 excise tax is reported on Form

5330, whereas liability for individual income tax is reported on

Form 1040 or some variation thereof.     Income tax, with certain

exceptions not pertinent here, is generally reported on an annual

calendar or fiscal year basis.    A report on Form 5330 is required

for each taxable year of the disqualified person that a

prohibited transaction exists in the “taxable period” as defined

in section 4975(f)(2).   Sec. 54.6011-1(b), Pension Excise Tax

Regs.   Section 4975(f)(2) defines the term "taxable period" as

the period beginning with the date on which the prohibited

transaction occurs and ending on the earliest of the date of

mailing the notice of deficiency, the date of assessment, or the

date on which the prohibited transaction is corrected.

Accordingly, although income and excise tax returns are both

filed annually, the taxable period for excise tax is variable and

generally unlike the period for income tax purposes.

     Finally, the income tax and the excise tax attributable to

prohibited transactions are imposed for inherently different

purposes.   In view of the foregoing, we find that respondent was

not prohibited from issuing a notice of deficiency determining

that petitioner is liable for excise tax under section 4975 for

1991, even though petitioner had already received a notice of

deficiency determining that he was liable for an income tax
                                 - 6 -

deficiency for 1991.   Because respondent was not prohibited from

issuing the notice of deficiency in this case and petitioner

timely petitioned for a redetermination, we have jurisdiction to

consider and resolve the parties' controversy for all years,

including 1991.4

     To reflect the foregoing,

                                         An order will be issued

                                 granting respondent's motion for

                                 partial summary judgment.




     4
       In the consolidated case filed in response to the February
notice, respondent moved to amend the answer to allege that the
1991 excise tax be considered along with the 1991 income tax
deficiency in that case. Respondent, it appears, moved to
include the excise tax in the consolidated case if the partial
summary judgment motion was unsuccessful. Due to the granting of
respondent's partial summary judgment motion, respondent's motion
to amend the answer in the consolidated case will be denied.
