Filed: July 3, 1997

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 96-2266

(Tax Ct. No. 94-9290)

Hyman S. Zfass,

Petitioner - Appellant,

versus

Commissioner of Internal Revenue,

Respondent - Appellee.

ORDER

The Court amends its opinion filed June 23, 1997, as follows:

On page 11, footnote 8, lines 1 and 4 -- the references to

"Heasley's" are corrected to read "Heasleys."

For the Court - By Direction

/s/ Patricia S. Connor

Clerk
PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

HYMAN S. ZFASS,

Petitioner-Appellant,

v. No. 96-2266

COMMISSIONER OF INTERNAL REVENUE,

Respondent-Appellee.

Appeal from the United States Tax Court.

(Tax Ct. No. 94-9290)

Argued: May 9, 1997

Decided: June 23, 1997

Before MURNAGHAN and NIEMEYER, Circuit Judges, and

FABER, United States District Judge for the

Southern District of West Virginia, sitting by designation.

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Affirmed by published opinion. Judge Murnaghan wrote the opinion,

in which Judge Niemeyer and Judge Faber joined.

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COUNSEL

ARGUED: Craig Dennis Bell, TAYLOR, HAZEN & KAUFFMAN,

L.C., Richmond, Virginia, for Appellant. Patricia McDonald Bowman, Tax Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Loretta C.

Argrett, Assistant Attorney General, Richard Farber, Tax Division,

UNITED STATES DEPARTMENT OF JUSTICE, Washington,

D.C., for Appellee.

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OPINION

MURNAGHAN, Circuit Judge:

The Internal Revenue Service ("IRS") determined that Hyman

Zfass, Appellant, participated in a tax shelter which was solely tax

motivated. The IRS, therefore, disallowed the deductions taken on his

income tax returns and required him to pay interest and penalties.

Zfass's wife was dismissed as an innocent party.

Zfass has argued that he exercised good faith in relying on his own

expertise in the medical field and his accountant's advice in assessing

the profitability of the tax shelter and that the negligence penalties

were therefore improper. Moreover, he also has contested the overvaluation penalty assessed claiming that the deficiency was related to

a reduction in deductions and not to a valuation overstatement. Zfass

also objected to the increased rate of interest employed by the IRS in

calculating what he owed.

The Tax Court upheld the IRS's determination regarding tax liability and penalties. The Tax Court declined to to rule on the validity of

the increased interest rate since the Tax Court concluded that it lacked

jurisdiction to do so.

FACTS

Hyman Zfass is a medical doctor who specializes in sports medicine. In 1982 Zfass purchased one partnership share in Therapeutics

CME Group, L.P., a limited partnership the stated purpose of which

was to acquire by lease and to market continuing medical education

("CME") video programs.

The video disk master programs were produced by World Video

Crop and the television center of Hahnemann Medical College and

Hospital of Philadelphia ("Hahnemann"). The partnership was responsible for reproducing the programs and selling them to members of

the medical profession to satisfy their continuing medical education

requirements. Dr. Zfass was an expert in sports medicine and was

familiar with Hahnemann and at least one of the physicians who was

the moderator on one of the tapes.

 2
The cost of one partnership share was $17,000, half of which was

paid in 1982 and half in 1983. The partnership promised that in return

for his investment Zfass would receive a tax deduction of $31,902 in

1982 and $27,745 in 1983. Assuming a taxpayer was in the 50% tax

bracket, the taxpayer would receive almost $16,000 in 1982 and

$14,000 in 1983.

Zfass learned about the partnership from B. Roland Freasier,

Zfass's tax adviser and attorney. Freasier introduced Zfass to Virgil

Williams who was the partnership's tax matters partner. Zfass was

provided with a private placement memorandum which Zfass read

"from cover to cover."

The private placement memorandum throughly discussed the tax

implications of the partnership. The memorandum stated:

ESTIMATED TAX

EFFECT PER $17,000

UNIT: Although Therapeutics CME

 Group, L.P. ("Partnership")

 may have income from its

 operations, for illustration pur-

 poses, the figures below do

 not take into account any

 income and assume a 50% tax

 bracket taxpayer. The Internal

 Revenue Service (the "IRS" or

 "Service") may disallow any

 of the various elements used

 in calculating Partnership

 expenses and credits thereby

 reducing federal income tax

 benefits on an investment.

 1982 1983

Capital contribution $ 8,500 $ 8,500

Deductible Loss Equivalent 31,903 27,745

Tax Write-off to Cash

 Investment Ratio 3.8 to 1 3.3 to 1

The deductible loss equivalent represents the tax deduction to the

 3
taxpayer.1 Therefore, in 1982 a taxpayer could expect to receive a

$3.8 tax deduction for every one dollar invested. Assuming the taxpayer was in the 50% tax bracket this would represent a $1.90 return

for every dollar invested. So assuming the partnership never made a

penny, the taxpayer would still receive almost a 100% return on his

investment by virtue of payment to the taxpayer from the United

States Treasury.

The private placement memorandum, as well as a tax opinion letter

that was attached to the memorandum, warned potential investors that

the IRS was attempting to identify and examine "abusive" tax shelters

and that the IRS's actions increased the likelihood that the investor's

return would be audited.

The memorandum also warned investors that the depreciation

deductions and investment tax credit that the partnership intended to

claim and pass through to its partners would be based on a fair market

value of each master video disk of $877,663, and that there was no

assurance "that the Masters could be sold for the appraised value or

that the lease fee program will provide the Partnership with a fair

return on equity."

Although it is unclear to what extent, Zfass discussed the possibility of purchasing an interest in the partnership with Freasier. Zfass

claims that due to his medical knowledge and his impression of Hahnemann and the physicians involved in the tapes he believed that the

partnership would make a profit. However, the private placement

memorandum made no projections regarding sales, income, or return

on investment excluding tax benefits. In fact, the main return on

investment representation assumed that the partnership was not profitable.

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1 The private placement memorandum indicates that the deduction consists primarily of lease payments and an investment tax credit. Since the

tax credit is not merely a deduction but is applied as an offset to a taxpayer's tax liability, the partnership treated each dollar of the investment

tax credit as a $2.00 deductible loss for purposes of calculating the

deductible loss equivalent.

 4
What Zfass knew was that, as the partnership was presented, he

could not lose. He would receive almost a 100% return on his investment if the partnership failed to sell even one video tape. It was

unnecessary for the partnership to convince Zfass that it could make

a profit, because Zfass would profit, by way of payment by the United

States Treasury, regardless of whether the partnership turned a profit.

After Zfass became a limited partner in the partnership, the partnership's tax return, as well as the tax returns of 26 similar partnerships,

was audited by the IRS. The IRS sent notices to the parties that the

tax deductions would be disallowed and the partnership's tax matters

partner filed a petition in the Tax Court to contest the adjustments.

Since the 27 partnerships all involved the production of videotapes

for use in CME programs, the partnerships and the IRS agreed to use

three of the partnerships as a test case. See Charlton v. Commissioner,

60 T.C.M. (CCH) 324 (1990), aff'd 990 F.2d 1161 (9th Cir. 1993).

In Charlton, the Tax Court upheld the IRS's determination and held

that: (1) the partnerships lacked any profit objective; (2) the sales

forecast and the values of the license, leases, and tapes were grossly

overstated; and (3) these were sham transactions entered into primarily for their tax benefits. Id. at 347-352, 355.

After the Charlton decision the partnership's tax matters partner

agreed to the disallowance of all deductions and investment tax credits and the disallowance was passed through to each partner. Zfass

was assessed $15,773 for 1982 and $10,805 for 1983 plus interest and

penalties. The IRS argued that Zfass was negligent in claiming the

deductions and penalized him under 26 U.S.C. § 6653. In addition, it

claimed Zfass's underpayment of tax was due to a value overstatement and penalized him under 26 U.S.C. § 6659. The IRS further

charged Zfass an increased rate of interest because his underpayment

was due to a tax motivated transaction. Zfass does not contest that he

owes $15,773 and $10,805 for the disallowed deductions, but he does

contest the IRS's assessment of interest and penalties. The Tax Court

upheld the penalties assessed by the IRS. The Tax Court declined to

consider whether Zfass was liable for additional interest under

§ 6621(c) since the Tax Court determined that it lacked jurisdiction

under White v. Commissioner, 95 T.C. 209 (1990).

 5
Zfass appeals the Tax Court's determination that the negligence

and overvaluation penalties apply. In addition, Zfass contends that

White v. Commissioner is wrongly decided and that the Tax Court has

jurisdiction over additional interest under § 6621(c).

DISCUSSION

The Tax Court's findings of fact will be upheld unless they are

clearly erroneous. Hendricks v. Commissioner, 32 F.3d 94, 97 (4th

Cir. 1994). The Tax Court's decision is clearly erroneous if "on the

entire evidence the reviewing court is left with the definite and firm

conviction that a mistake has been made." Faulconer v.

Commissioner, 748 F.2d 890, 895 (4th Cir. 1984). "[W]here there are

two permissible views of the evidence, the factfinder's choice

between them cannot be clearly erroneous." Hendricks, 32 F.3d at 97,

citing Thomas v. Commissioner, 792 F.2d 1256, 1260 (4th Cir. 1986).

I. Negligence Penalties

Under former § 6653, a taxpayer could be assessed a 5% penalty

for underpayment of taxes if any part of the underpayment was due

to negligence or intentional disregard of rules and regulations.2 The

taxpayer bears the burden of disproving IRS's determination of negligent underpayment. Korshin v. Commissioner, 91 F.3d 670, 671 (4th

Cir. 1996). Negligence denotes "lack of due care or failure to do what

a reasonable and ordinarily prudent person would do under the circumstances." Id. at 672, citing Schrum v. Commissioner, 33 F.3d 426,

437 (4th Cir. 1994).

One factor which courts consider in determining if persons acted

negligently is whether they relied on advice from a tax advisor.

United States v. Boyle, 469 U.S. 241, 252 (1985); Leonhart v.

Commissioner, 414 F.2d 749, 750 (4th Cir. 1969). However, that reliance must be reasonable and the taxpayer must show that the accoun-

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2 I.R.C. § 6653 was repealed by the Omnibus Budget Reconciliation

Act of 1989, Pub. L. No. 101-239, 103 Stat. 2106, § 7721(c)(2), effective

for returns due after 1989. Negligence is now one component of the

accuracy-related penalty found in I.R.C. § 6662. Zfass's taxes for 1982

and 1983 obviously were for periods prior to the change.

 6
tant had all the necessary information to make an informed decision.

Id.

Zfass claims that he relied on advice from his accountant regarding

the propriety of the investment in the instant case and that this reliance was evidence that he exercised due care.3 Zfass also argues that

he had tremendous experience with sports medicine and was aware of

the market for continuing medical education tapes in that area. He

claims that his experience provided him with independent judgment

that the investment would be a good one. Zfass thus contends, relying

on Mollen v. United States, 72 AFTR. 2d 93-6443; 93-2 U.S.T.C.

¶ 50,585 (D.C. AZ 1993), that advice from his accountant plus his

independent examination of the investment are evidence that he exercised due care.

In Mollen the taxpayer was involved in a similar transaction to the

one of Zfass. The taxpayer was also a medical doctor. He received

information regarding the partnership and personally examined the

information. Mollen also claimed that due to his prior experience as

a physician, he knew of Hahnemann Medical College and its good

reputation. Mollen also consulted a tax attorney who advised him that

the transactions were legitimate under the Internal Revenue Code.

The district court held that by consulting with, and relying upon, the

advice of his accountant and lawyer, Mollen had acted reasonably.

Mollen, 72 AFTR. 2d at 93-6447.

However, Zfass's problem lies in his reliance on Mollen which is

a different case and rests on different facts. Most importantly, he

gives insufficient weight to the deference we pay to lower courts. The

district court may not have abused its discretion in Mollen. It looked

at the facts and, assessing them, determined that Mollen acted

reasonably.4

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3 The significant expertise of Zfass's accountant and Zfass's close relationship with the accountant are assumed to be established. It is sufficient

to know that Zfass and his accountant had both a professional and a personal relationship, and that Zfass's accountant was extremely involved in

Zfass's business affairs.

4 The facts concerning Zfass were not identical. Zfass did not fully

apprise his accountant of the relevant information and Zfass did not

properly rely on his accountant's advice.

 7
Thus, in the instant case, we have quite a different situation. On

somewhat similar, but somewhat different, facts, the Tax Court determined that Zfass's actions were not reasonable. Zfass must show, not

just that other courts have reached contrary conclusions, but that the

Tax Court's decision was clearly erroneous. Zfass has not met that

burden.

Zfass was given the opportunity to invest in a complicated partnership. The private offering memorandum contained significant warnings regarding the risk of the investment. It also included information

which indicated that the taxpayer would receive a tax write-off up to

3.8 times the amount of the investment. In addition, the offering statement warned that the IRS was aggressively investigating tax shelter

programs. Zfass bought one share of the partnership.

Zfass first argues that he cannot be negligent because he reasonably

relied on his accountant. However, the Tax Court determined that

Zfass failed to prove that he relied on his accountant. Zfass did not

call his accountant as a witness and there is no evidence in the record

indicating what advice Zfass's accountant may have provided. In

addition, Zfass was unable to provide a bill or proof of payment

regarding the advice he received from his accountant.5

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5 Zfass argues that the reason he does not have a bill is that

Over the years, Dr. Zfass and Freasier reached an agreement for

the payment of legal services and medical services. Each would

bill the other for significant or large projects and professional

services. However, for the more routine and mundane services

which did not involve much time, they frequently did this on a

quid pro quo basis. Dr. Zfass did pay Freasier for large legal

projects and service provided to him by Freasier.

Therefore, he claims that this advice was given to him as a quid pro quo

for medical services. Interestingly, such quid pro quo activities are taxable. 26 C.F.R. 161-2(d) ("If services are paid for in exchange for other

services, the fair market value of such other services taken in payment

must be included in income as compensation." Zfass should have paid

taxes on all of the "free" services which he received from Freasier in

exchange for medical services. Therefore, in his brief, absent a statute of

limitations bar, Zfass may have subjected himself to further income tax

liability.

 8
At trial, Zfass failed to establish what advice he received from

Freasier. There is no evidence in the record to show what knowledge

or information Freasier had regarding the investment. The Tax Court

determined that Zfass did not reasonably rely on his accountant. It

determined that there was no evidence which established that Freasier

was aware of the non-tax aspects of the plan. In addition, it determined that there was no evidence in the record to establish what kind

of advice Freasier gave to Zfass. Zfass may have relied on Freasier,

but the Tax Court's determination that Zfass did not sufficiently rely

on his accountant and its finding that the accountant lacked sufficient

knowledge about the investment to give competent advice are entitled

to deference and are not clearly erroneous. See also Illes v.

Commissioner, 982 F.2d 163 (6th Cir. 1992) (finding that vague

assertion that accountant "suggested that this was a good investment"

was insufficient to prove good faith reliance).

Zfass also argues that he is not liable for negligence since, due to

his experience in sports medicine, he had the expertise and intelligence properly to evaluate the profitability of the continuing medical

education sports medicine video tapes. He argues that he looked at the

market for CME credit and determined that the video tapes would be

a good investment.

In Bernard v. Commissioner, 731 F.2d 230 (4th Cir. 1984), the

court addressed a tax shelter which provided a 4 to 1 ratio of tax benefits to investment. In Bernard, the court determined that a book deal

which was designed to provide investors with major tax benefits and

had no profit motive was an improper deduction. One of the factors

that the court looked at was the ratio of tax benefits to the amount

invested.6

The Tax Court determined that, if Zfass were a reasonable investor,

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6 The Bernard case concluded:

It is a frightening prospect when our wealthy citizens, those in

the highest income tax brackets, seek to take indefensible advantage of the country and their fellow citizens, especially those

who have far less from which to meet their tax responsibilities.

Id. at 233.

 9
he would have done more than he did in determining whether the

investment made sense. It determined that the 3.8 to 1 ratio of tax

benefits to investment should have given Zfass notice that the investment scheme was primarily for a tax purpose.

In addition, Zfass took no actions which would indicate that he

believed that his investigation revealed a profitable financial investment. He did not consult with investment advisors or the managers of

the partnership. Absent his alleged conversation with his accountant,

and viewing tapes made by other similar partnerships, there is no evidence that Zfass conducted any investigation into the profitability of

the investment. The Tax Court determined, as a factual finding, to

which deference is due, that Zfass's decision was"tax driven, not economically driven." In light of the facts, the Tax Court's decision was

not clearly erroneous.7

II. Valuation Overstatement Penalties

First, Zfass argues that the valuation overstatement penalty does

not apply in the instant case. Second, he argues that even if it applies,

the penalty should have been waived because he acted in good faith

by relying on the advice of his accountant. The second issue can be

dealt with easily because the Tax Court did not abuse its discretion

in determining that Zfass did not act in good faith by relying on his

accountant. Therefore, the Tax Court did not abuse its discretion in

holding that Zfass was not entitled to a waiver under § 6659(e) since

he did not act in good faith.

As to the issue of whether § 6659 applies to the instant case, Zfass

argues that § 6659 should not apply because in the instant case a

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7 The Tax Court is only requiring the taxpayer to exercise common

sense. The partnership had a very large tax benefit as a percentage of the

investment and a large part of the partnership material was devoted to the

tax benefits. The partnership material contains almost no discussion

regarding marketing efforts, sales projections or profitability of the partnership. There is not a per se rule that a 3.8 to 1 ratio of tax benefits to

investment is a tax shelter, but surely such a large ratio should put the

taxpayer on notice that the investment may be tax and not profit motivated.

 10
deduction was disallowed not overvalued. However, disallowance of

the deduction was because it was overvalued. Section 6659 provides

that if a taxpayer owes additional taxes due to a valuation overstatement, the taxpayer may be assessed a penalty of 30% of the underpayment attributable to the overvaluation. § 6659(b).

Zfass principally relies on Heasley v. Commissioner, 902 F.2d 380

(5th Cir. 1990).8 In Heasley, the IRS disallowed a deduction and an

investment tax credit for "energy saving units." The IRS imposed a

value overstatement penalty for the underpayment of tax "attributable

to a valuation overstatement." 26 U.S.C. § 6659(a). The Tax Court

upheld the IRS's determination. The Fifth Circuit reversed. It held

that

whenever the IRS totally disallows a deduction or credit, the

IRS may not penalize the taxpayer for a valuation overstatement included in that deduction or credit. In such a case, the

underpayment is not attributable to a valuation overstatement. Instead, it is attributable to claiming an improper

deduction or credit.

Heasley, 902 F.2d 382-383. The court determined that to eliminate

entirely is not an overstatement but a complete eradication of a value.

However, the Fifth Circuit's approach has not been followed by

other circuits. The Second, Sixth, and Eighth Circuits have held that

when an underpayment stems from deductions that are disallowed due

to a lack of economic substance, the deficiency is attributable to an

overstatement of value and is subject to penalty under § 6659. See

Massengill v. Commissioner, 876 F.2d 616, 619-20 (8th Cir. 1989);

Illes v. Commissioner, 982 F.2d 163, 167 (6th Cir. 1992); Gilman v.

Commissioner, 933 F.2d 143, 151 (2d Cir. 1991), cert. denied, 502

U.S. 1031 (1992).

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8 The facts in Heasley were much different. The Heasleys did not have

a college education and were blue collar workers. They completely relied

on the advice of an accountant and a questionable investment adviser. In

fact, the Heasleys were indeed scammed out of a considerable sum of

money. They were clearly not trying to defraud the government.

 11
In any event, the IRS did not follow the Fifth Circuit's approach

in Heasley and instead chose to follow the Second, Sixth and Eighth

Circuit's approach. The IRS determined that since the deduction in

the present case was a sham and lacked economic substance, the overvaluation penalty applied.

The Tax Court also followed the Second, Sixth and Eighth Circuits

and held that "when a transaction lacks economic substance, the correct basis is zero; any amount claimed is a valuation overstatement."

Zfass v. Commissioner, 71 T.C.M. (CCH) 2670 (1996). The Tax

Court determined that in the instant case a value overstatement was

a primary reason for the disallowance of the claimed tax benefits and

that the valuation overstatement penalty applied. We agree with the

Tax Court that the reasoning of the Second, Sixth and Eighth Circuits

is applicable here.

Zfass argues that the Tax Court improperly relied on Charlton and

that the facts of Charlton are not facts in the instant case. He argues

that there is no evidence in the record regarding the market values of

the leases and there is no evidence in the record that Zfass's estimation of the leases' value was improper. Zfass is correct that the facts

in Charlton are not quite the same as those in the instant case, but

Charlton's legal rule remains. Thus, the finding in Charlton that the

plan lacked economic substance is binding upon Zfass. The reason

that the plan lacked economic substance is because of the over valuation of the master leases.

In addition, the Tax Court concluded that in the present case "[i]t

is obvious from the record in this case that valuation overstatement

was a primary reason for the disallowance of the claimed tax benefits." Such a conclusion is supported by the record, and the Tax

Court's findings in this regard were not clearly erroneous. We agree

with the Tax Court that the taxpayer's underpayment stems from

excessive deductions that were disallowed due to the lack of economic substance; therefore, the deficiency is attributable to a value

overstatement.

III. Jurisdictional Issue

If a taxpayer fails to pay taxes when they are due, the taxpayer is

charged interest from the date the payment is due until the payment

 12
is actually made. 26 U.S.C. § 6601(a). If there is an underpayment in

tax over $1,000 and that underpayment is attributable to a "tax motivated transaction" the interest rate is increased to 120 percent of the

rate of interest prescribed in § 6621(a)(2). See § 6621(c)(1). The code

defines "tax motivated transaction" as any valuation overstatement or

transaction which is fraudulent or a sham. § 6621(c)(3)(A).

The Commissioner determined that this provision applied to Zfass

and assessed interest on the underpayment of taxes. The Tax Court,

relying on White v. Commissioner, 95 T.C. 209, 211 (1990) (en banc)

ruled that the Tax Court did not have jurisdiction to redetermine the

increased rate of interest.

Probably, the issue is an irrelevant one because the Tax Court was

correct in its holding that Zfass was involved in a"tax motivated

transaction." Hence, should we reach the merits of the aspect of

Zfass's case dealing with the increased interest rate, we might well

affirm.

However, since the Tax Court claimed it lacked jurisdiction to consider whether Zfass was liable for additional interest, we must address

the jurisdictional question. There are no appellate court opinions

upholding or denying the Tax Court's decision in White. However,

there are several appellate court cases which recognize that the Tax

Court does not have jurisdiction regarding interest determinations.

See Melin v. Commissioner, 54 F.3d 432, 434 (7th Cir. 1995) (no

jurisdiction to review Commissioner's decision not to abate interest);

McMullen v. Commissioner, 27 F.3d 510, 511 (11th Cir. 1994) (no

jurisdiction to redetermine interest when taxpayer has not pre-paid

interest); Littfin v. Commissioner, 17 F.3d 1345 (10th Cir. 1994); Bax

v. Commissioner, 13 F.3d 54 (3d Cir. 1993) (same); Transport Manufacturing & Equipment Co. v. Commissioner, 434 F.2d 373, 381 (8th

Cir. 1970).

In White, the Tax Court examined its statutory grant of jurisdiction

and determined that it did not have jurisdiction to redetermine additional interest.9 The court noted that it was a court of limited jurisdic-

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9 The Tax Court backed away somewhat from White in Barton v.

Commissioner, 97 T.C. 548 (1991). In Barton, the Tax Court held that

 13
tion and only had that jurisdiction which was provided to it by statute.

It then examined its statutory authority. Section 6230 of the Internal

Revenue Code provides the Tax Court with jurisdiction over deficiency proceedings. Specifically, the Tax Court has jurisdiction

regarding any deficiency attributable to affected items which require

partner level determinations.

Deficiency is defined under § 6211(a) as the amount by which the

tax imposed exceeds the amount paid. However, § 6601(e)(1) of the

code specifically excludes interest from the definition of tax for purposes of deficiency proceedings. The Tax Court therefore determined

that interest due was not considered a deficiency and that the Tax

Court had no jurisdiction to redetermine interest because it was not

a deficiency.

We agree with the Tax Court's statutory analysis. The Tax Court

properly followed its opinion in White v. Commissioner holding that

it did not have jurisdiction to decide the interest question.

Accordingly, we affirm the Tax Court's opinion throughout.

AFFIRMED

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it had jurisdiction to consider a § 6621(c) interest assessment if the party

had paid the tax due plus the interest penalties. The court determined that

once the interest was paid it could be considered an overpayment, and

the court had jurisdiction to determine whether there was an overpayment pursuant to § 6512. Thus, had Zfass paid the penalty plus interest,

the Tax Court may well have had jurisdiction to decide this issue.

 14