David and Shirley Singer - Page 47

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               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.                                     




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