Leon M. and Mary K. Jaroff - Page 61

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          Commissioner, 990 F.2d 893 (6th Cir. 1993).                                 
               Petitioners' reliance on Gainer v. Commissioner, supra;                
          McCrary v. Commissioner, 92 T.C. 827 (1989), and Todd v.                    
          Commissioner, supra, is misplaced.  In those cases, in contrast             
          to the consolidated cases herein, it was found that a valuation             
          overstatement did not 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.  Petitioners' consolidated cases 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.13                                                       

          13   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            




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