Myron Barlow and Arlene Barlow - Page 3




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               After concessions by petitioners,2 the issues remaining for             
          decision are as follows:                                                     
               (1) Whether petitioners are liable for additions to tax                 
          under section 6653(a)(1) and (2) for negligence or intentional               
          disregard of rules or regulations.  We hold that they are.                   
               (2) Whether assessment of additional interest under section             
          6621(c) without prior opportunity to contest such assessment                 
          violates the Due Process Clause of the Fifth Amendment.  We hold             
          that it does not.                                                            






               2 Petitioners do not contest that the Sentinel EPS recyclers            
          that are involved in these cases were overvalued.  See Gottsegen             
          v. Commissioner, T.C. Memo. 1997-314; see also Ulanoff v.                    
          Commissioner, T.C. Memo. 1999-170.  Petitioners therefore concede            
          that they are liable for the addition to tax for valuation                   
          overstatement under sec. 6659 for 1982.                                      
               Further, petitioners do not contest (other than on                      
          constitutional grounds) that they are liable for additional                  
          interest under sec. 6621(c) with respect to the underpayment for             
          1982.  See sec. 6621(c)(3)(A)(i), (v); Ulanoff v. Commissioner,              
          supra.                                                                       
               Finally, it would appear that petitioners have abandoned                
          their contention regarding the statute of limitations (the so-               
          called Davenport issue) in view of the recent affirmance of this             
          Court’s opinion on that issue by the Court of Appeals for the                
          Eleventh Circuit.  See Davenport Recycling Associates v.                     
          Commissioner, 220 F.3d 1255 (11th Cir. 2000), affg. T.C. Memo.               
          1998-347; see also Klein v. United States, 86 F. Supp.2d 690                 
          (E.D. Mich. 1999); Clark v. United States, 68 F. Supp.2d 1333,               
          1342-1346 (N.D. Ga. 1999); Kohn v. Commissioner, T.C. Memo. 1999-            
          150.  However, if we are mistaken in this regard, then we refer              
          the parties to paragraph 3 of the stipulation of facts, and we               
          decide the Davenport issue in respondent’s favor based on the                
          foregoing precedent.                                                         




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