John Sann and Marianne Sann, et al. - Page 76

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          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.'"  Gilman v. Commissioner, supra at             
          151 (quoting Massengill v. Commissioner, 876 F.2d 616, 619-620              
          (8th Cir. 1989), affg. T.C. Memo. 1988-427); see also Rybak v.              
          Commissioner, 91 T.C. at 566-567; Zirker v. Commissioner, 87 T.C.           
          970, 978-979 (1986); Donahue v. Commissioner, T.C. Memo. 1991-              
          181, affd. without published opinion 959 F.2d 234 (6th Cir.                 
          1992), affd. sub nom. Pasternak v. Commissioner, 990 F.2d 893               
          (6th Cir. 1993).                                                            
               Petitioners' reliance on Gainer v. Commissioner, supra, Todd           
          v. Commissioner, 89 T.C. 912 (1987), and McCrary v. Commissioner,           
          92 T.C. at 827, is misplaced.  In those cases, in contrast to the           
          consolidated cases herein, it was found that a valuation                    
          overstatement did not contribute to an underpayment of taxes.  In           
          the Todd and Gainer cases, the underpayments were due exclusively           
          to the fact that the property in each case had not been placed in           
          service.  In the McCrary case, the underpayments were deemed to             
          result from a concession that the agreement at issue was a                  
          license and not a lease.  Although property was overvalued in               




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