Bruce and Lois Zenkel, et al. - Page 69

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          benefits and our holding that the Partnership transactions lacked           
          economic substance.6                                                        
               2.  Concession of the Deficiency                                       
               Petitioners argue that their concessions of the deficiencies           
          preclude imposition of the section 6659 additions to tax.                   
          Petitioners contend that their concessions render any inquiry               
          into the grounds for such deficiencies moot.  Absent such                   
          inquiry, petitioners argue that it cannot be known if their                 
          underpayments were attributable to a valuation overstatement or             
          other 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, 902 F.2d 380 (5th Cir. 1990), and McCrary v.                  
          Commissioner, supra.                                                        



          6         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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