- 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
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