Ernest I. Korchak - Page 44

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          underpayment, including an addition for overvaluation, which we             
          upheld.  See Merino v. Commissioner, T.C. Memo. 1997-385.  The              
          Court of Appeals for the Third Circuit sustained our                        
          determination and held that section 6659 is properly imposed                
          where a claimed tax benefit is disallowed because it is an                  
          integral part of a transaction lacking economic substance.                  
          Merino v. Commissioner, 196 F.3d at 159.  The Court of Appeals              
          for the Third Circuit distinguished the Court of Appeals for the            
          Fifth Circuit’s holding in Heasley that section 6659 was                    
          inapplicable where there were no grounds for the disallowance of            
          the taxpayers’ claimed benefits other than overvaluation,                   
          “because the Court’s decision appears to have been driven by                
          understandable sympathy for the Heasleys rather than by a                   
          technical analysis of the statute.”  Merino v. Commissioner, 196            
          F.3d at 158-159.                                                            
               In arriving at its decision, the Court of Appeals for the              
          Third Circuit relied on Gilman v. Commissioner, 933 F.2d 143,               
          152 (2d Cir. 1991), affg. T.C. Memo. 1989-684, in which the                 
          Court of Appeals for the Second Circuit stated:                             
               Where a transaction is not respected for lack of                       
               economic substance, the resulting underpayment is                      
               attributable to the implicit overvaluation.  A                         
               transaction that lacks economic substance generally                    
               reflects an arrangement in which the basis of the                      
               property was misvalued in the context of the                           
               transaction.  While this interpretation of                             
               underpayment “attributable to a valuation                              







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