                         T.C. Memo. 1998-448



                       UNITED STATES TAX COURT



   MICHAEL H. JOHNSON AND PATRICIA E. JOHNSON, Petitioners v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 23702-96.              Filed December 23, 1998.



     Terry B. Bates, Brian J. Seery, and Robert A. Olson, for

petitioners.

     Steven M. Roth, for respondent.



               MEMORANDUM FINDINGS OF FACT AND OPINION

     VASQUEZ, Judge:    Respondent determined a deficiency of

$918,931, an addition to tax pursuant to section 6651(a)(1) of
                               - 2 -


$181,033, and a penalty pursuant to section 6663(a) of $689,198

with respect to petitioners' 1992 Federal income tax.1

     The issues for decision are:   (1) Whether petitioners are

entitled to defer recognition of gain on the disposition of

property located at 45640 North 23d Street West in Lancaster,

California (the 23d Street property), pursuant to section 1033;

(2) whether petitioners are liable for the fraud penalty pursuant

to section 6663(a), or, in the alternative, whether petitioners

are liable for the accuracy-related penalty pursuant to section

6662(a) for 1992; and (3) whether petitioners are liable for the

addition to tax for failure to timely file their return for 1992.

                          FINDINGS OF FACT

     Some of the facts have been stipulated and are so found.

The stipulation of facts and the attached exhibits are

incorporated herein by this reference.   Petitioners, husband and

wife, resided in Quartz Hills, California, at the time they filed

their petition.

The 23d Street Property

     In 1982, the Lancaster Redevelopment Agency (the LRA)

prepared a Redevelopment Plan for the Lancaster Fox Field

Redevelopment Project pursuant to California Community


     1
        Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect for the year in issue, and
all Rule references are to the Tax Court Rules of Practice and
Procedure.
                               - 3 -


Redevelopment Law, California Health and Safety Code sections

33000-33855 (West 1973 & Supp. 1998).     On November 1, 1982, the

LRA passed, approved, and adopted Resolution No. 12-82

transmitting its report and Redevelopment Plan to the City of

Lancaster, California (Lancaster).     On December 20, 1982, at a

meeting of the City Council of Lancaster (the LCC), the LCC, by

Ordinance No. 289, approved and adopted the Redevelopment Plan

for the Fox Field Redevelopment Project.

     The rules and regulations of the Fox Field Redevelopment

Project provided as follows:

          The Project Area is large and contains many
     parcels of real property. As a result there is a need
     to simplify the availability of participation
     opportunities. Therefore, as an alternative to
     requiring a participation agreement for each property
     not to be purchased or subject to Agency [the LRA]
     acquisition by eminent domain, the Agency is authorized
     to make determinations of those properties which
     conform to the Redevelopment Plan. If such a
     determination is made by the Agency then the property
     will not be subject to eminent domain by the Agency as
     long as the property continues to conform to the
     Redevelopment Plan. The Agency shall in good faith
     review the property contained in the Project Area and
     issue Certificates of Conformance to qualifying
     properties as soon as possible consistent with the
     restoration and redevelopment permitted by the Plan and
     specific designs for development adopted by the Agency
     pursuant to the Plan.

     The 23d Street property is located in the Fox Field

Redevelopment Project.   In February 1983, the LRA approved an

agreement between the LRA and petitioner Michael H. Johnson (Mr.

Johnson) to assist in the development of a Ford motor vehicle
                                 - 4 -


dealership in the Fox Field Redevelopment Project at the 23d

Street property.    Petitioners were then the owners of the 23d

Street property.

The Car Dealerships and City Tax Revenue

     During the relevant time period, Mr. Johnson operated Ford

and Lincoln-Mercury motor vehicle dealerships on the 23d Street

property.

     Cities in California receive 1 percent of the gross sales

tax from auto sales in that city.

The LCC, the LRA, and the Attorneys Involved

     The LCC had five members.    The LCC comprised the five voting

members (directors) of the LRA.

     During the relevant time period, George Root (Mr. Root),

Arnie Rodio (Mr. Rodio), Henry Hearns, William Pursley (Mayor

Pursley), and George Theophanis (Mr. Theophanis)2 were members of

the LCC and directors of the LRA.

     Steven Dukett (Mr. Dukett) was the Redevelopment Director of

the LRA, and Mark Asturias (Mr. Asturias) was the Senior

Development Projects Coordinator of the LRA.

     David McEwen (Mr. McEwen) was the city attorney of Lancaster

and counsel for the LRA.    In April 1990, Mr. Johnson retained

David Wright (Mr. Wright) in connection with the Palmdale Auto

Mall transaction.

     2
         Mr. Theophanis died before the trial in this case.
                               - 5 -


The Palmdale Auto Mall v. the Lancaster Auto Mall

     Lancaster and the City of Palmdale, California (Palmdale)

are located in the Antelope Valley of California, which is 75

miles north of Los Angeles.   The cities are only 5 miles apart.

     During the period in question, Lancaster was engaged in an

auto mall development competition with Palmdale.    Prior to

October 1990, Lancaster had invested approximately $10 million

into the development of an auto mall.   Previously, Lancaster lost

a competition for a regional shopping center to Palmdale.

     Lancaster felt that it needed a domestic auto dealer as an

anchor in its auto mall, and it wanted Mr. Johnson's motor

vehicle dealerships to relocate to the Lancaster Auto Mall.

     On February 14, 1989, Mr. Johnson signed a Disposition and

Development Agreement (DDA) concerning a planned relocation to

the Palmdale Auto Mall located in Palmdale.3

     On July 19, 1989, the LRA made a proposal to Mr. Johnson

concerning relocating his motor vehicle dealerships to the

Lancaster Auto Mall.   In a letter dated July 26, 1989, Mr.

Johnson declined this offer and indicated he was going to move

his motor vehicle dealerships to the Palmdale Auto Mall.



     3
        It is unclear from the record whether Mr. Johnson would
be relocating his Ford dealership, his Lincoln-Mercury
dealership, or both dealerships; however, it is clear that Mr.
Johnson thought he would be moving both motor vehicle
dealerships.
                               - 6 -


     On August 18, 1989, Palmdale signed the DDA regarding Mr.

Johnson's move to the Palmdale Auto Mall.

     After learning of Mr. Johnson's agreement with Palmdale but

before Mr. Johnson terminated his agreement with Palmdale, Mr.

McEwen advised the LCC and the LRA staff to refrain from any

negotiations with Mr. Johnson concerning the 23d Street property

while Mr. Johnson was under agreement with Palmdale.

     While under contract with Palmdale, Mr. Johnson tried to

negotiate with Lancaster to move his motor vehicle dealerships to

the Lancaster Auto Mall.   Between April 1990 and September 1990,

he sent several letters to Lancaster city officials in an effort

to communicate the terms of his offers.   The LCC, however, was

unwilling to negotiate with Mr. Johnson during this time.   A

letter dated June 22, 1990, specifically mentioned Lancaster's

unwillingness to negotiate with Mr. Johnson.   During this period,

Lancaster rejected Mr. Johnson's proposals.

     In early 1990, Mr. Johnson's negotiations concerning

relocating his motor vehicle dealerships to the Palmdale Auto

Mall began to deteriorate.   This was due in part to the fact that

William Royster (Mr. Royster), the developer of the Palmdale Auto

Mall who was negotiating with Mr. Johnson on behalf of Palmdale,

made representations that were not the position of Palmdale and

to which Palmdale was unwilling to commit.
                               - 7 -


     By letter dated October 15, 1990, Mr. Johnson informed Mr.

Royster that he (i.e., Mr. Johnson) was withdrawing from the

agreement to relocate his motor vehicle business to the Palmdale

Auto Mall.   This letter was hand delivered to Mr. Royster.

     After terminating discussions with Palmdale in mid-October

1990, Mr. Johnson intended to remain at the 23d Street property

or to sell the motor vehicle dealerships to a third party.

     In October 1990, shortly after Mr. Johnson terminated

discussions with Palmdale, Lancaster city officials learned that

Mr. Johnson had withdrawn from his agreement with Palmdale and

that the withdrawal upset Palmdale city officials.

     After learning that Mr. Johnson's negotiations with Palmdale

had terminated, Mr. McEwen advised the LCC and the LRA that they

possessed the power and the authority to condemn, and to threaten

condemnation of, the 23d Street property.

     The LCC and the LRA approved the use of threats of

condemnation against petitioners.   The LRA directed its staff to

notify Mr. Johnson that the LRA would condemn the 23d Street

property.

Lancaster Officials Tell Mr. Johnson That Lancaster Is Going To
Condemn the 23d Street Property

     On or about October 16, 1990, while visiting Mr. Johnson at

the 23d Street property, Mr. Theophanis told Mr. Johnson that

Lancaster would condemn the 23d Street property unless
                                - 8 -


petitioners agreed to sell the property to Lancaster and relocate

the motor vehicle dealerships to the Lancaster Auto Mall.

     On October 29, 1990, in a meeting in Mayor Pursley's office

at Lancaster City Hall, Mr. Theophanis again advised Mr. Johnson

that Lancaster would condemn the 23d Street property.   Mayor

Pursley witnessed Mr. Theophanis' tell Mr. Johnson that Lancaster

would condemn the 23d Street property, and Mayor Pursley also

informed Mr. Johnson that Lancaster would condemn the 23d Street

property.

     At the October 29, 1990, meeting, Lancaster wanted to make

it crystal clear to Mr. Johnson that the LCC and the LRA were

going to do everything in their power to put Mr. Johnson in the

Lancaster Auto Mall.   In particular, Mr. Theophanis made it very

clear to Mr. Johnson that one way or the other, Mr. Johnson's

motor vehicle dealerships were going to end up in the Lancaster

Auto Mall.   If condemnation was required, that is what Lancaster

would do.

     Mr. Dukett told Mr. Johnson that Lancaster would condemn the

23d Street property.   Mr. Dukett advised Mr. Johnson that the LCC

supported telling Mr. Johnson that Lancaster would condemn the

23d Street property and would proceed with condemnation if Mr.

Johnson refused to negotiate.   Mr. Asturias witnessed Mr. Dukett

advise Mr. Johnson that Lancaster would condemn the 23d Street
                               - 9 -


property.   Mr. Asturias also frequently informed Mr. Johnson that

Lancaster would condemn the 23d Street property.

     A letter to Mr. Johnson regarding condemnation of the 23d

Street property was drafted, and Mr. McEwen approved it as to

form and content (with one change).    This letter was edited,

dated August 4, 1991, and signed by Mr. Dukett.    The letter

stated the following:

     This letter is to confirm conversations which you are
     having with the staff of the Lancaster Redevelopment
     Agency concerning the acquisition of your property.
     The property, located at 45640 North 23d Street West,
     commonly known as the Johnson Ford/Lincoln Mercury
     Dealership location, is currently proposed to be
     acquired by the Agency through negotiations. As you
     are aware, the Agency is authorized to acquire property
     by the use of eminent domain. If these negotiations
     are unsuccessful, staff will recommend to the Agency
     Board that they proceed with proceedings for the
     acquisition of your property through the exercise of
     the power of eminent domain.

On or about August 4, 1991, Mr. Dukett delivered this letter to

Mr. Johnson.

Mr. Johnson Seeks Advice After Being Told That Lancaster Would
Condemn the 23d Street Property

     In October 1990, after Mr. Theophanis informed Mr. Johnson

that Lancaster would condemn the 23d Street property, Mr. Johnson

sought advice from Mr. Wright regarding Lancaster's threats.     Mr.

Johnson specifically asked Mr. Wright, "Can they do that?"      Mr.

Wright advised Mr. Johnson that (1) Lancaster had the authority

to condemn the 23d Street property, (2) whether or not Lancaster

and the LRA had the ability to condemn was not an issue, and (3)
                               - 10 -


the only issue would be the fair market value of the property.

Mr. Wright made it clear to Mr. Johnson that he would not be able

to win a condemnation fight.

The Negotiations That Followed Mr. Johnson Being Told That
Lancaster Would Condemn the 23d Street Property

     The negotiations between Lancaster and Mr. Johnson while the

LRA and the LCC were informing Mr. Johnson that Lancaster would

condemn the 23d Street property were hostile, strained, tense,

and difficult with Lancaster repeatedly telling Mr. Johnson that

Lancaster would condemn the 23d Street property.

     On September 16, 1991, Mr. Johnson entered into a DDA with

the LRA.   The DDA expressly states that the LRA desired to

acquire the 23d Street property "for purposes of redevelopment by

an action in eminent domain or by deed in lieu thereof," and the

purpose of the DDA was to effectuate the Redevelopment Plan by

providing for the LRA's acquisition of the 23d Street property

"for redevelopment by agreement in lieu of an action in eminent

domain for such purposes."

     Escrow documents executed in connection with the DDA

expressly state that the transaction was "in lieu of an action in

eminent domain".

The New Property

     In 1992, Mr. Johnson acquired property in the Lancaster Auto

Mall that was "property similar or related in service or use to"
                                - 11 -


the 23d Street property.   Mr. Johnson relocated to the Lancaster

Auto Mall immediately upon vacating the 23d Street property.

Petitioners' 1992 Tax Returns

     Petitioners filed a Form 4868, 1992 Application for

Automatic Extension of Time to File U.S. Individual Income Tax

Return.   On April 15, 1993, respondent received the Form 4868.

On August 13, 1993, petitioners filed their 1992 tax return.

                                OPINION

I.   Section 1033

     As a general rule, gain realized from the sale or other

disposition of property must be recognized.   Sec. 1001(c).

Section 1033 provides an exception to this rule.    If property, as

a result of condemnation or threat or imminence thereof, is

compulsorily or involuntarily converted into money, no gain shall

be recognized if (1) the taxpayer elects nonrecognition

treatment, (2) the taxpayer purchases property similar or related

in service or use to the property converted within the statutory

time limit, and (3) the cost of the replacement property equals

or exceeds the amount realized on the conversion.   Sec. 1033(a).

     Section 1033 is a relief provision enacted to allow a

taxpayer to replace property involuntarily converted without

recognizing any gain resulting from that conversion.    John

Richard Corp. v. Commissioner, 46 T.C. 41, 44 (1966).     As a

relief provision, this section is construed liberally to achieve
                               - 12 -


its purpose.    Filippini v. United States, 318 F.2d 841, 844 (9th

Cir. 1963); John Richard Corp. v. Commissioner, supra at 44.

     Respondent concedes that (1) petitioners have made the

election, (2) petitioners purchased property similar or related

in service or use to the property converted within the statutory

time limit, and (3) the cost of the replacement property equaled

or exceeded the amount realized on the conversion.   The only

issue is whether Lancaster made a "threat of condemnation"

regarding the 23d Street property.

     A "threat of condemnation" exists if (1) the body

threatening condemnation possesses the power of eminent domain,

(2) the property owner is told by an official of the threatening

body that condemnation will be sought unless the owner negotiates

a sale or exchange of the property, and (3) the information

conveyed to the owner gives the owner reasonable grounds to

believe that the threat was authorized and likely to be carried

out unless a sale or exchange is arranged.    Tecumseh Corrugated

Box Co. v. Commissioner, 94 T.C. 360, 376-377 (1990), affd. 932

F.2d 526 (6th Cir. 1991); Maixner v. Commissioner, 33 T.C. 191,

195 (1959); Dominguez Estate Co. v. Commissioner, T.C. Memo.

1963-112; Carson Estate Co. v. Commissioner, T.C. Memo. 1963-90.

     The existence of a threat of condemnation is judged from the

seller's perspective taking into account all facts known at the

time of sale.    Tecumseh Corrugated Box Co. v. Commissioner,
                              - 13 -


supra at 377.   Generally, we are willing to find that a threat of

condemnation has taken place if the taxpayer might reasonably

believe from representations of Government agents and from

surrounding circumstances that condemnation was likely to take

place if the taxpayer did not sell the property.   Id. at 376.     We

have been unwilling to find a threat, however, where it should

have appeared to the taxpayer that the chance of condemnation was

remote.   Rainier Cos. v. Commissioner, 61 T.C. 68, 76 (1973),

revd. and remanded in part on another issue without unpublished

order 538 F.2d 338 (9th Cir. 1975); Warner v. Commissioner, 56

T.C. 1126, 1137 (1971), affd. without published opinion 478 F.2d

1406 (7th Cir. 1973).   Whether property is converted under a

threat of condemnation is a question of fact, and petitioners

bear the burden of proof.   Rule 142(a).

     1.   Eminent Domain

     The body threatening condemnation must possess the power of

eminent domain.   Under section 1033, as long as an agency could

readily obtain authority to condemn in the event that the

taxpayer refused to cooperate, actual authority to condemn is not

required at the time the threat was made.   See Balistrieri v.

Commissioner, T.C. Memo. 1979-115.

     Cities in California have the power of eminent domain.     Cal.

Govt. Code sec. 37350.5 (West 1988); City of Needles v. Griswold,

8 Cal. Rptr. 2d 753 (Ct. App. 1992).   Lancaster's ability to
                               - 14 -


"take" is broad.   See Berman v. Parker, 348 U.S. 26 (1954);

Redevelopment Agency v. Del-Camp Invs., Inc., 113 Cal. Rptr. 762

(Cal. Ct. App. 1974).   A city in California may also form a

redevelopment agency which, subject to its specific mandate and

approved redevelopment plan for a particular area, can acquire

land within the plan area through condemnation or otherwise.

Cal. Health & Safety Code secs. 33000-33714; see also

Redevelopment Agency v. Del-Camp Invs., Inc., supra.

     Section 403 of the Fox Field Redevelopment Project plan

provides, in pertinent part, that "The Agency [the LRA] may

purchase, lease, obtain option upon or otherwise acquire real

property located in the Project Area by gift, devise, exchange,

purchase, or any other means authorized by law including the use

of eminent domain for purposes of redevelopment."

     Petitioners argue that both Lancaster and the LRA had the

power to condemn, via eminent domain, the 23d Street property.

Respondent concedes that Lancaster has eminent domain authority

pursuant to California Government Code section 37350.5 but argues

that the LRA could not condemn the 23d Street property using the

power of eminent domain.

     We are unpersuaded by respondent's argument.   As respondent

concedes, California law provides Lancaster with the power of

eminent domain.    Therefore, we need not consider whether the LRA
                                - 15 -


possessed this power.4    We conclude that the body threatening

condemnation possessed the power of eminent domain.

     2.    The Threats

     The taxpayer must have received a threat to acquire property

through condemnation.     The taxpayer may receive threats orally or

in writing.

     Respondent points out that the gravamen of the case at bar

is whether Lancaster threatened Mr. Johnson with condemnation of

the 23d Street property.     Respondent argues that the testimony of

the multitude of witnesses who stated that numerous Lancaster

city officials threatened Mr. Johnson with condemnation of the

23d Street property is not believable.

     After considering the record as a whole, and determining the

weight to be accorded to the testimony of the various witnesses,

we conclude, as we have found as facts, that several Lancaster

city officials made very clear threats of condemnation to Mr.

Johnson.   Mayor Pursley, Mr. Rodio, Mr. Root, Mr. McEwen, Mr.

Dukett, and Mr. Asturias all credibly testified that, after Mr.

Johnson terminated his agreement with Palmdale, the LCC and the

LRA repeatedly threatened Mr. Johnson with condemnation of the

23d Street property.     Mr. Asturias testified that threats of


     4
        We note, however, that based on the facts of this case
and the law of California the LRA did possess the power to
condemn the 23d Street property or it could have readily obtained
such power.
                               - 16 -


condemnation were used "practically every time we talked to him."

Several witnesses who were members of the LRA and the LCC during

the period in question also credibly testified that the threats

were authorized and that there was considerable animosity between

(1) the LRA and Mr. Johnson and (2) the LCC and Mr. Johnson.

     Respondent argues that respondent's inability to find any

witness to refute the testimony concerning oral threats of

condemnation of the 23d Street property by Lancaster city

officials does not mean the threats occurred or if they occurred

that they were genuine.    This argument is unsupported by the

facts of this case.

     Respondent also argues that the chance of condemnation by

Lancaster was remote.   We have been unwilling to find a threat

where it should have appeared to the taxpayer that the chance of

condemnation was remote.    Rainier Cos. v. Commissioner, supra at

76; Warner v. Commissioner, supra at 1137.

     Respondent argues that the LCC and the LRA failed to comply

with California law and did not take the steps necessary to

condemn the 23d Street property.

     Several witnesses who were members of the LRA and the LCC

during the period in question credibly testified that both the

LCC and the LRA were prepared to proceed to the next step in the

condemnation protocol if a negotiated sale was not consummated.

We do not believe that Lancaster's decision to forgo beginning
                               - 17 -


the next steps in the condemnation protocol made the chance of

condemnation less remote.

     The facts are that representatives of the LRA and members of

the LCC threatened Mr. Johnson with condemnation of the 23d

Street property, and they meant it.     We conclude that members of

the LCC and the LRA genuinely threatened Mr. Johnson with

condemnation of the 23d Street property.

     3.     Reasonable Belief of the Threat

     The taxpayer must believe that the threat is likely to be

carried out if a voluntary sale is not arranged.

     Respondent believes the dealings between Lancaster and Mr.

Johnson were a structured transaction.    This belief is based, in

part, on a letter Mr. Johnson wrote to Steven West, the former

city manager of Lancaster, dated June 22, 1990.    In this letter,

Mr. Johnson explained the factors motivating him to negotiate a

deal with Lancaster.    Among the many factors listed in the letter

were (1) Lancaster's ability to perform a friendly condemnation,

and (2) section 1031 treatment for the exchange of the 23d Street

property.    In the letter, Mr. Johnson stated that this "virtually

eliminates" his potential tax liability.

     From this letter and respondent's initial contacts with

petitioners and Lancaster city officials, respondent was

convinced that something sinister was afoot.    Respondent casts

Lancaster as powerless, compliant to Mr. Johnson's demands, and
                               - 18 -


fearful of not acceding to his will; respondent portrays Mr.

Johnson as forcing Lancaster into feigning threats of

condemnation so petitioners could be accorded section 1033

treatment.   Respondent contends that when Mr. Johnson rejected

the Palmdale deal, "he had Lancaster exactly where he wanted."

     It is from this viewpoint that respondent argues that Mr.

Johnson could not believe the threats of condemnation were likely

to be carried out because Mr. Johnson forced Lancaster to pretend

to threaten him.    Furthermore, respondent contends that if

Lancaster repeatedly threatened Mr. Johnson with condemnation and

then took no action, a reasonable person would not believe the

threats.

     We disagree.   Lancaster and Mr. Johnson were involved in

bitter, antagonistic, contentious, and hostile negotiations.

There was a sense of mutual mistrust between Mr. Johnson and

Lancaster officials.    Mr. Asturias testified as follows:

     Every time Mr. Johnson tried to renegotiate the deal,
     we just ratcheted down harder and harder on the terms
     of the deal. I think that--I did not come up with this
     idea. The idea was--came up from my boss, Mr. Dukett.
     I thought it was a very good idea.

Mr. Rodio testified that he made it a point to make sure that Mr.

Johnson did not get everything that Mr. Johnson wanted.      He also

testified that Mr. Johnson was "a hard negotiator" and "a

predator".
                             - 19 -


     Respondent makes much of the fact that (1) Mr. Johnson

reminded Lancaster city officials to include in written documents

the fact that Lancaster was acquiring the 23d Street property

under threat of condemnation, and (2) Mr. Johnson was concerned

about the tax implications of a move to the Lancaster Auto Mall.

Contrary to respondent's contentions, the fact that petitioner

may have had tax concerns regarding his sale of the 23d Street

property to Lancaster while under threat of condemnation does not

lead us to conclude that the deal struck between Lancaster and

Mr. Johnson was structured or collusive.   See Balistrieri v.

Commissioner, T.C. Memo. 1979-115.

     We conclude that petitioners had reasonable grounds to

believe, and did believe, that Lancaster authorized the threats

of condemnation and was likely to carry them out unless a sale or

exchange was arranged.

     4.   Conclusion

     The witnesses consistently and credibly testified that

Lancaster city officials threatened Mr. Johnson with condemnation

of the 23d Street property and that Mr. Johnson believed, and had

reason to believe, these threats.

     Based on the record, we conclude that a "threat of

condemnation" existed, and petitioners sold the 23d Street

property because of repeated threats of condemnation from a

number of Lancaster city officials.
                                 - 20 -


II.    Fraud/Negligence

       Section 6663(a) imposes a penalty equal to 75 percent of the

portion of the underpayment attributable to fraud.        Section

6662(a) imposes a accuracy-related penalty equal to 20 percent of

the portion of the underpayment attributable to negligence or a

substantial understatement.      See sec. 6662(b)(1) and (2).

       For purposes of the fraud and accuracy-related penalties, an

"underpayment" is the amount by which any tax imposed by the Code

exceeds the excess of the sum of the amount shown as the tax by

the taxpayer on his return plus amounts not so shown previously

assessed (or collected without assessment) over the amount of

rebates made.    Sec. 6664(a).    In this case, the adjustments

respondent made in the statutory notice of deficiency stem from

the determination that petitioners are not entitled to defer

recognition of gain on their disposition of the 23d Street

property pursuant to section 1033.        We have found that

petitioners are entitled to section 1033 deferral of gain;

therefore, there is no "underpayment", and petitioners are not

liable for penalties pursuant to section 6663(a) or section

6662(a).

III.    Failure to File

       The section 6651(a)(1) addition to tax for 1992 was based on

the deficiency determined by respondent.        As a result of our

holding that petitioners are entitled to defer recognition of
                             - 21 -


gain on the disposition of 23d Street property, petitioners are

not liable for the 1992 deficiency.    As there is no deficiency,

we have no jurisdiction over this addition.    See sec. 6665(b);

Meyer v. Commissioner, 97 T.C. 555, 562 (1991).

     In reaching all of our holdings herein, we have considered

all arguments made by the parties, and to the extent not

mentioned above, we find them to be irrelevant or without merit.

     To reflect the foregoing,

                                           Decision will be entered

                                      for petitioners.
