John Sann and Marianne Sann, et al. - Page 80

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               Petitioners reliance on McCrary v. Commissioner, supra, is             
          misplaced.  In that 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.  In McCrary v.              
          Commissioner, supra, the section 6659 addition to tax was                   
          disallowed because the agreement at issue was conceded to be a              
          license and not a lease.  In contrast, the records in                       
          petitioners' cases plainly show that petitioners' underpayments             
          were attributable to overvaluation of the Sentinel EPE recyclers.           
          We hold that petitioners' reliance on McCrary v. Commissioner,              
          supra, is inappropriate.30                                                  
               We held in Provizer v. Commissioner, supra, that each                  
          Sentinel EPE recycler had a fair market value not in excess of              
          $50,000.  Our finding in Provizer that the Sentinel EPE recyclers           
          had been overvalued was integral to and inseparable from our                
          holding of a lack of economic substance.  Petitioners stipulated            
          that the Partnership transactions were similar to the Clearwater            
          transaction described in the Provizer case, and that the fair               


          30   Petitioners' citation of Heasley v. Commissioner, supra, 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, see supra note             
          29 to the effect that 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.                                            




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