Leonard A. Gross - Page 3

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          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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