Ernest I. Korchak - Page 40

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          value, the addition to tax is equal to 30 percent of the                    
          underpayment.  Sec. 6659(b).  Petitioner bears the burden of                
          proving that respondent’s determination of the section 6659                 
          addition to tax is erroneous.  Rule 142(a); Luman v.                        
          Commissioner, 79 T.C. at 860-861.                                           
               Petitioner claimed an investment tax credit based on a                 
          purported basis in the recyclers of $577,500, petitioner’s                  
          allocable share of Madison’s purported $7 million basis in the              
          recyclers.  In the FPAA, however, respondent determined that                
          Madison’s actual basis in the recyclers was zero, in part                   
          because Madison was a sham and lacked economic substance.                   
          Respondent adjusted petitioner’s return in accordance with                  
          Madison’s examination results, reducing both his basis of                   
          $577,500 in the recyclers to zero and his Madison-related                   
          credits to zero.  If the disallowance of petitioner’s claimed               
          tax benefits is attributable to the valuation overstatement of              
          his basis in the recyclers, he is liable for the section 6659               
          addition to tax at the rate of 30 percent of the underpayment of            
          tax attributable to the tax benefits claimed with respect to                
          Madison unless he establishes that he is entitled to a waiver of            
          the penalty under section 6659(e).  E.g., Thornsjo v.                       
          Commissioner, T.C. Memo. 2001-129.                                          
               Petitioner contends that section 6659 does not apply in                
          this case because (1) respondent’s disallowance of the claimed              






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