Leon and Belle Atkind - Page 19
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finding of lack of economic substance is "due in part" to a
valuation overstatement), affg. T.C. Memo. 1991-449; Gilman v.
Commissioner, 933 F.2d 143, 151 (2d Cir. 1991), affg. T.C. Memo.
1989-684; Masters v. Commissioner, T.C. Memo. 1994-197; Harness
v. Commissioner, T.C. Memo. 1991-321.
In the Stipulation of Settled Issues, petitioners conceded
that they "are not entitled to any deductions, losses, investment
credits, business energy investment credits or any other tax
benefits claimed on their tax returns as a result of their
participation in the Plastics Recycling Program". In Todd v.
Commissioner, supra, and McCrary v. Commissioner, supra, we
denied application of section 6659, even though the subject
property was overvalued, because the related deductions and
credits had been conceded or denied in their entirety on other
grounds. In Todd, we found that an underpayment was not
attributable to a valuation overstatement because property was
not placed in service during the years in issue. In McCrary, we
found the taxpayers were not liable for the section 6659 addition
to tax when, prior to the trial of the case, the taxpayers
conceded that they were not entitled to the investment tax credit
because the agreement in question was a license and not a lease.
In both cases, the underpayment was attributable to something
other than a valuation overstatement.
This Court has held that concession of the investment tax
credit in and of itself does not relieve taxpayers of liability
for the section 6659 addition to tax. Dybsand v. Commissioner,
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