Ernest I. Korchak - Page 43

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          claiming an improper deduction or credit rather than to a                   
          valuation overstatement.  Heasley v. Commissioner, 902 F.2d at              
          383.  To support its holding, the Court of Appeals for the Fifth            
          Circuit in Heasley relied on Todd v. Commissioner, 862 F.2d 540             
          (5th Cir. 1988), in which it held that a valuation overstatement            
          did not contribute to the underpayment of taxes where the                   
          underpayment was due exclusively to the fact that the property              
          providing the basis for the tax benefits at issue had not been              
          placed in service in the year the benefits were claimed.                    
               On facts similar to the facts in this case, the Court of               
          Appeals for the Third Circuit, the court to which this case is              
          appealable, has distinguished Heasley.  In Merino v.                        
          Commissioner, 196 F.3d 147 (3d Cir. 1999), the taxpayer had                 
          invested in a tax shelter that involved the leasing of                      
          recyclers.  The taxpayer was a successful engineer with a Ph.D.             
          degree in managerial economics and experience in the                        
          petrochemical industry, who, like petitioner in this case,                  
          claimed that he was an acknowledged expert in plastics                      
          technology.  Id. at 149.  The taxpayer investigated the tax                 
          shelter for a friend and invested for himself as a result of his            
          findings.  Id. at 148-149.  The Commissioner ultimately                     
          determined that the investment lacked economic substance,                   
          disallowed the tax benefits the taxpayer claimed in relation to             
          the investment, and imposed additions to tax as a result of the             






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