Stuart A. and Harriet J. Gollin, et al. - Page 74

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          argued that their underpayment of taxes derived from                        
          nonrecognition of the transaction for lack of economic substance,           
          independent of any overvaluation.  The Court of Appeals for the             
          Second Circuit sustained imposition of the section 6659 addition            
          to tax because overvaluation of the computer equipment                      
          contributed directly to this Court's earlier conclusion that the            
          transaction lacked economic substance and was a sham.  Gilman v.            
          Commissioner, supra at 151.  In addition, the Court of Appeals              
          for the Second Circuit agreed with this Court and with the Court            
          of Appeals for the Eighth Circuit that "'when an underpayment               
          stems from disallowed * * * investment credits due to lack of               
          economic substance, the deficiency is * * * subject to the                  
          penalty under section 6659.'"  Id. at 151 (quoting Massengill v.            
          Commissioner, 876 F.2d 616, 619-620 (8th Cir. 1989), affg. T.C.             
          Memo. 1988-427); see also Rybak v. Commissioner, 91 T.C. 524,               
          566-567 (1988); Zirker v. Commissioner, 87 T.C. 970, 978-979                
          (1986); Donahue v. Commissioner, T.C. Memo. 1991-181, affd.                 
          without published opinion 959 F.2d 234 (6th Cir. 1992), affd. sub           
          nom. Pasternak v. Commissioner, 990 F.2d 893 (6th Cir. 1993).               
               Petitioners' reliance on Gainer v. Commissioner, 893 F.2d              
          225 (9th Cir. 1990); Todd v. Commissioner, 862 F.2d 540 (5th Cir.           
          1988); and McCrary v. Commissioner, 92 T.C. 827 (1989), is                  
          misplaced.  In those cases, in contrast to the consolidated cases           
          herein, it was found that a valuation overstatement did not                 






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