Keith E. and Marilyn B. West - Page 27




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               Petitioners claimed tax benefits, including investment tax             
          credits and business energy credits, based on a purported value             
          of $1,750,000 for each recycler.  Petitioners have conceded that            
          the fair market value of a recycler in 1982 was not in excess of            
          $50,000.  Accordingly, if disallowance of petitioners’ claimed              
          benefits is attributable to such valuation overstatements,                  
          petitioners are liable for section 6659 additions to tax at the             
          rate of 30 percent of the underpayments of tax attributable to              
          tax benefits claimed with respect to Masters.                               
               Petitioners contend that section 6659 does not apply in                
          their cases because (1) disallowance of the claimed tax benefits            
          was attributable to other than a valuation overstatement, and (2)           
          Masters’ concession in the underlying partnership case precludes            
          imposition of the section 6659 additions to tax.                            
          1.  The Grounds for Petitioners’ Underpayments                              
               Petitioners argue that where, as here, the Commissioner                
          completely disallows a tax benefit, the tax underpayment cannot             
          be attributable to a valuation overstatement.  Petitioners cite             
          the following cases to support their argument:  Heasley v.                  
          Commissioner, 902 F.2d 380 (5th Cir. 1990), revg. T.C. Memo.                
          1988-408; Gainer v. Commissioner, 893 F.2d 225 (9th Cir 1990),              
          affg. T.C. Memo. 1988-416; Todd v. Commissioner, 862 F.2d 540               
          (5th Cir. 1988), affg. 89 T.C. 912 (1987); McCrary v.                       
          Commissioner, 92 T.C. 827 (1980).                                           






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