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),
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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.
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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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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
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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
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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.