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Respondent argues she was not precluded from issuing a second
notice of deficiency because petitioners had not filed a Tax
Court petition with respect to the first notice of deficiency.
If the Commissioner mails a notice of deficiency in income
tax and the taxpayer files a timely petition with the Tax Court,
the Commissioner is in general precluded from mailing to the
taxpayer a second notice of deficiency determining an additional
deficiency in income tax for the same year. Sec. 6212(c); McCue
v. Commissioner, 1 T.C. 986, 987-988 (1943). See generally
Breman v. Commissioner, 66 T.C. 61, 65-70 (1976). Accordingly,
the Commissioner is restricted from issuing a second notice of
deficiency with respect to the same taxable year only if the
taxpayer has filed a Tax Court petition with respect to the first
notice of deficiency. Goff v. Commissioner, 18 B.T.A. 283, 288-
289 (1929); Gmelin v. Commissioner, T.C. Memo. 1988-338, affd.
without published opinion 891 F.2d 280 (3d Cir. 1989).
On July 21, 1993, respondent sent a statutory notice of
deficiency to petitioners determining a deficiency for taxable
year 1990. Petitioners did not file a petition with respect to
the July 21, 1993, notice of deficiency. Respondent issued a
second statutory notice of deficiency on February 10, 1994, in an
attempt to preserve respondent's position with respect to prior
year deductions being contested by petitioners in another
proceeding before the Court.
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