Robert D. and Patricia K. Kaliban, et al. - Page 58

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            efforts to justify the overvaluation, was the dominant factor                             
            that led us to hold that the Clearwater transaction lacked                                
            economic substance.  Likewise, overvaluation of the Sentinel EPE                          
            recyclers in these cases is the ground for our holding herein                             
            that the Partnership transactions lacked economic substance.                              
                  Moreover, a virtually identical argument was recently                               
            rejected in Gilman v. Commissioner, supra, by the Court of                                
            Appeals for the Second Circuit.  In the Gilman case, the                                  
            taxpayers engaged in a computer equipment sale and leaseback                              
            transaction that this Court held was a sham transaction lacking                           
            economic substance.  The taxpayers therein, citing Todd v.                                
            Commissioner, supra, and Heasley v. Commissioner, supra, argued                           
            that their underpayment of taxes derived from nonrecognition of                           
            the transaction for lack of economic substance, independent of                            
            any overvaluation.  The Court of Appeals for the Second Circuit                           
            sustained imposition of the section 6659 addition to tax because                          
            overvaluation of the computer equipment contributed directly to                           
            this Court's earlier conclusion that the transaction lacked                               
            economic substance and was a sham.  Gilman v. Commissioner, supra                         
            at 151.  In addition, the Court of Appeals for the Second Circuit                         
            agreed with this Court and with the Court of Appeals for the                              
            Eighth Circuit that "'when an underpayment stems from disallowed                          
            * * * investment credits due to lack of economic substance, the                           
            deficiency is * * * subject to the penalty under section 6659.'"                          






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