- 47 - 2. Concession of the Deficiency Petitioners argue that their concession of the deficiency precludes imposition of the section 6659 addition to tax. Petitioners contend that their concession renders any inquiry into the grounds for such deficiency moot. Absent such inquiry, petitioners argue that it cannot be known if their underpayment was attributable to a valuation overstatement or other discrepancy. Without a finding that a valuation overstatement contributed to an underpayment, according to petitioners, section 6659 cannot apply. In support of this line of reasoning, petitioners rely heavily upon Heasley v. Commissioner, 902 F.2d 380 (5th Cir. 1990), and McCrary v. Commissioner, supra. Petitioners' open-ended concession does not obviate our finding that the Plymouth transaction lacked economic substance due to overvaluation of the recyclers. This is not a situation where we have "to decide difficult valuation questions for no reason other than the application of penalties." See McCrary v. Commissioner, supra at 854 n.14. The value of the Sentinel EPE 7(...continued) 862 F.2d 540 (5th Cir. 1988), we consider it distinguishable. To the extent that the reversal in the Heasley case is based on a concept that where an underpayment derives from the disallowance of a transaction for lack of economic substance, the underpayment cannot be attributable to an overvaluation, this Court and the Courts of Appeals for the Second, Fourth, Sixth and Eighth Circuits have disagreed. See Gilman v. Commissioner, 933 F.2d 143, 151 (2d Cir. 1991) (The lack of economic substance was due in part to the overvaluation, and thus the underpayment was attributable to the valuation overstatement), affg. T.C. Memo. 1989-684; Zfass v. Commissioner, supra.Page: Previous 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 Next
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