William and Joan Spears - Page 67

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          Commissioner, supra, the section 6659 addition to tax was                   
          disallowed because the agreement at issue was 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.28                                                            
               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             
          the fair market value of a Sentinel EPE recycler in 1981 and 1982           
          was not in excess of $50,000.  Given those concessions, and the             
          fact that the records here plainly show that the overvaluation of           
          the recyclers was the underlying reason for disallowance of the             
          claimed tax benefits, we conclude that the deficiencies were                
          attributable to overvaluation of the Sentinel EPE recyclers.                

          28   Petitioners' reliance on 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             
          27, to the effect that the Court of Appeals for the Second                  
          Circuit and this Court have not followed the Heasley opinion with           
          respect to the application of sec. 6659.                                    





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