Leon M. and Mary K. Jaroff - Page 62

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               2.  Concession of the Deficiencies                                     
               Petitioners argue that their concession of the deficiencies            
          precludes imposition of the section 6659 additions to tax.                  
          Petitioners contend that their concession renders any inquiry               
          into the grounds for such deficiencies moot.  Absent such                   
          inquiry, petitioners argue that it cannot be known whether their            
          underpayments were attributable to a valuation overstatement or             
          another discrepancy.  Without a finding that a valuation                    
          overstatement contributed to an underpayment, according to                  
          petitioners, section 6659 cannot apply.  In support of this line            
          of reasoning, petitioners rely heavily upon Heasley v.                      
          Commissioner, supra, and McCrary v. Commissioner, supra.                    
               Petitioners' open-ended concession does not obviate our                
          finding that the Partnership transactions lacked economic                   
          substance due to overvaluation of the recyclers.  This is not a             
          situation where we have "to decide difficult valuation questions            
          for no reason other than the application of penalties."  See                
          McCrary v. Commissioner, supra at 854 n.14.  The value of the               
          Sentinel EPE recycler was established in Provizer v.                        
          Commissioner, supra, and stipulated by the parties.  As a                   


          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."), affg. T.C. Memo. 1989-684.                                




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