- 35 - to and is the core of our holding that the Resource transaction was a sham and lacked economic substance. Petitioners' reliance on McCrary v. Commissioner, 92 T.C. at 827, and Rogers v. Commissioner, T.C. Memo. 1990-619, is misplaced. In the McCrary case, the taxpayers conceded disentitlement to their claimed tax benefits and the section 6659 addition to tax was held inapplicable. However, the taxpayers' concession of the claimed tax benefits, in and of itself, did not preclude imposition of the section 6659 addition to tax. Rather, the section 6659 addition to tax was disallowed because the agreement at issue was conceded to be a license and not a lease. In the Rogers case, this Court rejected the section 6659 addition to tax because we had "not found that the credits were disallowed due to an overvaluation". In contrast, the record in this case plainly shows, and we have so held, that petitioners' underpayment was attributable to overvaluation of the Sentinel EPE recyclers. We consider petitioners' reliance on McCrary v. Commissioner, supra, and Rogers v. Commissioner, supra, to be inappropriate.3 3 Petitioners' citation of Heasley v. Commissioner, 902 F.2d 380 (5th Cir. 1990), revg. T.C. Memo. 1988-408, 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, 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. See Gilman v. Commissioner, 933 F.2d 143, 151 (2d Cir. 1991), affg. T.C. Memo. 1989-684.Page: Previous 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 Next
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