Ira S. Greene and Robin C. Greene - Page 35

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          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.                                                             



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