Investment Research Associates - Page 547




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          1988-408.  On brief, they maintain that "neither party introduced            
          any evidence" with respect to the GLS Associates' adjustment.                
               Respondent, on the other hand, contends that the Kanters                
          failed to establish that they are not liable for the addition to             
          tax under section 6659 with respect to the GLS Associates'                   
          valuation overstatement.                                                     
               The Kanters presented no evidence on this issue.  They have             
          not shown that the underpayment was attributable to anything                 
          other than a valuation overstatement.64  Consequently, we sustain            

          64                                                                           
               Sec. 6659 does not apply to underpayments of tax that are               
          not "attributable to" valuation overstatements.  See McCrary v.              
          Commissioner, 92 T.C. 827 (1989); Todd v. Commissioner, 89 T.C.              
          912 (1987), affd. 862 F.2d 540 (5th Cir. 1988).  To the extent               
          taxpayers claim tax benefits that are disallowed on grounds                  
          separate and independent from valuation overstatements, the                  
          resulting underpayments of tax are not regarded as attributable              
          to valuation overstatements.  See Krause v. Commissioner, 99 T.C.            
          132, 178 (1992), affd. sub nom. Hildebrand v. Commissioner, 28               
          F.3d 1024 (10th Cir. 1994).  However, when valuation is an                   
          integral factor in disallowing deductions and credits, sec. 6659             
          is applicable.  See Illes v. Commissioner, 982 F.2d 163, 167 (6th            
          Cir. 1992), affg. T.C. Memo. 1991-449; Gilman v. Commissioner,               
          933 F.2d 143, 151 (2d Cir. 1991), affg. T.C. Memo. 1989-684;                 
          Masters v. Commissioner, T.C. Memo. 1994-197, affd. without                  
          published opinion 70 F.3d 1262 (4th Cir. 1995).  In Gainer v.                
          Commissioner, 893 F.2d 225 (9th Cir. 1990), affg. T.C. Memo.                 
          1998-416; Todd v. Commissioner, supra; and McCrary v.                        
          Commissioner, supra, it was found that a valuation overstatement             
          did not contribute to an underpayment of taxes.  In Todd and                 
          Gainer, the underpayments were due exclusively to the fact that              
          the property in each case had not been placed in service.  In                
          McCrary, the underpayments were deemed to result from a                      
          concession that the agreement at issue was a license and not a               
          lease.  As this Court indicated in Becker v. Commissioner, T.C.              
          Memo. 1996-538, Heasley v. Commissioner, 902 F.2d 380 (5th Cir.              
          1990), revg. T.C. Memo. 1988-408, which petitioners herein cite,             
          may be interpreted to represent merely an application of Todd.               
                                                              (continued...)           





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