Keith E. and Marilyn B. West - Page 29




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          to the penalty under section 6659.”  Massengill v. Commissioner,            
          supra at 619-620; see also Zirker v. Commissioner, 87 T.C. 970              
          (1986).                                                                     
               We also find that the facts in these cases are                         
          distinguishable from the facts in Gainer v. Commissioner, supra,            
          Todd v. Commissioner, supra, and McCrary v. Commissioner, supra.            
          In Gainer and Todd, it was found that a valuation overstatement             
          did not contribute to an underpayment of taxes.  In those cases,            
          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.  Although property was overvalued in each of those cases,            
          the overvaluation was not the grounds on which the taxpayers’               
          liabilities were sustained.  In contrast, a “different situation            
          exists where a valuation overstatement * * * is an integral part            
          of or is inseparable from the ground found for disallowance of an           
          item.”  McCrary v. Commissioner, supra at 859.  In the present              
          cases, we find that the overvaluation of the recyclers was                  
          integral to and inseparable from petitioners’ claimed tax                   
          benefits and the determination that Masters lacked economic                 
          substance.4                                                                 


          4    To the extent that Heasley v. Commissioner, 902 F.2d 380               
          (5th Cir. 1990), revg. T.C. Memo. 1988-408, merely represents an            
                                                             (continued...)           





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