Oreland A. and Lucille S. Thornsjo - Page 35




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          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 ground 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 Hamilton lacked economic                
          substance.5                                                                 
               Petitioners’ argument that there exists an alternate ground            
          for the disallowance of the claimed benefits that is independent            
          of an overvaluation statement ignores the facts in their cases.             
          Contrary to petitioners’ argument, the FPAA’s do not indicate               
          that the disallowance of tax benefits was premised upon the                 
          recyclers’ not being placed in service.  Instead, in the FPAA’s             
          respondent determined that Hamilton was not entitled to the                 



          5    To the extent that Heasley v. Commissioner, 902 F.2d 380               
          (5th Cir. 1990), revg. T.C. Memo. 1988-408, merely represents an            
          application of Todd v. Commissioner, 862 F.2d 540 (5th Cir.                 
          1988), affg. 89 T.C. 912 (1987), we consider Heasley                        
          distinguishable.  To the extent that Heasley is based on a                  
          concept that where an underpayment derives from the disallowance            
          of a transaction for lack of economic substance, the underpayment           
          cannot be attributable to an overvaluation, this Court, as well             
          as the Court of Appeals for the Eighth Circuit, has disagreed.              
          See Massengill v. Commissioner, 876 F.2d 616 (8th Cir. 1989),               
          affg. T.C. Memo. 1988-427.                                                  




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