- 70 - B. Analysis On brief, respondent specifically acknowledges that, if we deny petitioners' charitable contribution deductions for reasons other than their overvaluation of the transferred intangibles, "the penalty is not applicable", citing Gainer v. Commissioner, 893 F.2d 225 (9th Cir. 1990), affg. T.C. Memo. 1988-416. In Gainer, the issue was whether the taxpayer was liable for the overstatement penalty under circumstances in which his depreciation deduction and investment tax credit with respect to an equipment purchase were denied because: (1) The equipment was not placed in service during the taxable year, (2) the equipment was overvalued, and (3) the promissory note given in connection with the purchase was nonrecourse so that he was not at risk. We refused to apply the penalty on the ground that the deduction and credit were disallowed because the equipment had not been placed in service during the tax year. Therefore, the underpayments were not "attributable to" any overstatement of value.42 The Court of Appeals for the Ninth Circuit affirmed, reasoning as follows: Even if Gainer had correctly valued the container, the underpayment of tax would be the same because the container was not placed in service. Thus, Gainer's actual tax liability, after adjusting for failure to place the container in service, was no different from 42 Sec. 6662(b)(3), like its predecessor provision (sec. 6659) considered in Gainer, imposes an addition to tax on underpayments "attributable to" any "substantial valuation misstatement" (referred to, in sec. 6659, as "a valuation overstatement").Page: Previous 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 NextLast modified: March 27, 2008