substance.” 696 F.3d at 1136. Also, the Fifth and Ninth Circuits "have questioned the wisdom of their positions” in Todd, Heasley, and Gainer because those positions create the "anomalous result” of relieving a taxpayer of the penalty when a deduction is disallowed because it is so egregious that it is improper for a reason other than valuation, such as a lack of economic substance, See Bemont Investments, L.L.C. ex rel. Tax Matters Partner v. United States, 679 F.3d 339, 355 (5th Cir.2012) (Prado, J., concurring) (noting that the "Todd/Heasley rule,” by "[ajmplifying the egregiousness of the scheme — to the point where the transaction is an utter sham — could ..., perversely, shield the taxpayer from liability for overvaluation”); Keller v. Comm'r, 556 F.3d 1056, 1061 (9th Cir.2009) (<HOLDING>). 19 . The $1.8 million also represents the
recognizing that the rule as expressed in most circuits including merino is a sensible method of resolving overvaluation cases because it cuts off at the pass what might seem to be an anomalous result  allowing a party to avoid tax penalties by engaging in behavior one might suppose would implicate more tax penalties not fewer but acknowledging that nonetheless in this circuit we are constrained by gainer  holding that this is the rule in virtually all circuits recognizing but not resolving this question holding that the ninth circuit is constrained by gainer which rested in large part on todd but recognizing the sensible method of many other circuits recognizing this method