Philippe and Nadine Grelsamer - Page 67

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               Petitioners' reliance on McCrary v. Commissioner, supra, is            
          misplaced.  In that case, the taxpayers conceded disentitlement             
          to their claimed tax benefits and the section 6659 additions to             
          tax were held inapplicable.  However, the concessions of the                
          claimed tax benefits, in and of themselves, did not preclude                
          imposition of the section 6659 additions to tax.  In McCrary v.             
          Commissioner, supra, the section 6659 addition to tax was                   
          disallowed because the agreement at issue was conceded to be a              
          license and not a lease.  In contrast, the records in                       
          petitioners' cases plainly show that petitioners' underpayments             
          were attributable to overvaluation of the Sentinel EPE recyclers.           
          We hold that petitioners' reliance on McCrary v. Commissioner,              
          supra, is inappropriate.6                                                   
               We held in Provizer v. Commissioner, supra, that each                  
          Sentinel EPE recycler had a fair market value not in excess of              
          $50,000.  Our holding in the Provizer case that the Sentinel EPE            
          recyclers had been overvalued was integral to and inseparable               
          from our holding of a lack of economic substance.  Petitioners              
          stipulated that the Partnership transactions were similar to the            
          Clearwater transaction described in the Provizer case, and that             


          6    Petitioners' citation of Heasley v. Commissioner, supra, in            
          support of the concession argument is also inappropriate.  That             
          case was not decided by the Court of Appeals for the Fifth                  
          Circuit on the basis of a concession.  Moreover, see supra note 5           
          to the effect that this Court, the Court of Appeals for the                 
          Second Circuit, and other Courts have not followed the Heasley              
          opinion with respect to the application of sec. 6659.                       




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