- 588 - 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...)Page: Previous 578 579 580 581 582 583 584 585 586 587 588 589 590 591 592 593 594 595 596 597 Next
Last modified: May 25, 2011