Thomas E. and Joan A. Bennett - Page 14

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          petitioners' testimony, we hold that the Empire transaction was a           
          sham and lacked economic substance.  In reaching this conclusion,           
          we rely heavily upon the overvaluation of the Sentinel EPE                  
          recyclers.  Respondent is sustained on the question of the                  
          underlying deficiency.  We note that petitioners have explicitly            
          conceded this issue in stipulations of settled issues filed                 
          shortly before trial.  The record plainly supports respondent's             
          determination regardless of such concessions.  For a detailed               
          discussion of the facts and the applicable law in a substantially           
          identical case, see Provizer v. Commissioner, supra.                        
          Issue 1.  Sec. 6653(a) Negligence                                           
               In the notice of deficiency in docket No. 36202-86,                    
          respondent determined that petitioners Black were liable for the            
          negligence additions to tax under section 6653(a)(1) and (2) for            
          1981.  Petitioners Black have the burden of proving that                    
          respondent's determination is erroneous.  Rule 142(a); Luman v.             
          Commissioner, 79 T.C. 846, 860-861 (1982).  In an amendment to              
          answer, respondent asserted that petitioners Bennett were liable            
          for the negligence additions to tax under section 6653(a)(1) and            
          (2) for 1981, and under section 6653(a) for 1978 and 1979.                  
          Because these additions to tax were raised for the first time in            
          respondent's amendment to answer, respondent bears the burden of            
          proof on this issue.  Rule 142(a); Vecchio v. Commissioner, 103             
          T.C. 170, 196 (1994).                                                       






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