Stuart A. and Harriet J. Gollin, et al. - Page 75

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          contribute to an underpayment of taxes.  In the Todd and Gainer             
          cases, the underpayments were due exclusively to the fact that              
          the property in each case had not been placed in service.  In the           
          McCrary case, the underpayments were deemed to result from a                
          concession that the agreement at issue was a license and not a              
          lease.  Although property was overvalued in each of those cases,            
          the overvaluations were not the ground on which the taxpayers'              
          liability was sustained.  In contrast, "a different situation               
          exists where a valuation overstatement * * * is an integral part            
          of or is inseparable from the ground found for disallowance of an           
          item."  McCrary v. Commissioner, supra at 859.  The cases of                
          petitioners Fishbach and Gollin present just such a "different              
          situation":  overvaluation of the recyclers was integral to and             
          inseparable from petitioners' claimed tax benefits and our                  
          holding that the Partnership transactions lacked economic                   
          substance.16                                                                


          16   To the extent that Heasley v. Commissioner, 902 F.2d 380               
          (5th Cir. 1990), revg. T.C. Memo. 1988-408, merely represents an            
          application of Todd v. Commissioner, 89 T.C. 912 (1987), affd.              
          862 F.2d 540 (5th Cir. 1988), we consider it distinguishable.  To           
          the extent that the reversal in the Heasley case is based on a              
          concept that where an underpayment derives from the disallowance            
          of a transaction for lack of economic substance, the underpayment           
          cannot be attributable to an overvaluation, this Court and the              
          Court of Appeals for the Second Circuit have disagreed.  See                
          Gilman v. Commissioner, 933 F.2d 143, 151 (2d Cir. 1991) ("The              
          lack of economic substance was due in part to the overvaluation,            
          and thus the underpayment was attributable to the valuation                 
          overstatement.")                                                            





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