Robert G. and Lana L. Gale - Page 7

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          excluded from gross income if the discharge occurs when the                 
          taxpayer is insolvent.  The amount of income from discharge of              
          indebtedness excluded under section 108(a)(1)(B) is not to exceed           
          the amount by which the taxpayer is insolvent.  Sec. 108(a)(3).             
          For purposes of section 108, the term “insolvent” means the                 
          excess of liabilities over the fair market value of assets.  Sec.           
          108(d)(3).  Whether the taxpayer is insolvent, and the amount by            
          which the taxpayer is insolvent, is determined on the basis of              
          the taxpayer’s assets and liabilities immediately before the                
          discharge.                                                                  
               Petitioners did not submit to respondent or to the Court any           
          contemporaneous records or documents to establish the value of              
          their assets or liabilities at the time the second mortgage was             
          canceled.  The night before the trial petitioners created a list            
          of their assets and liabilities from information stored on their            
          computer.  Petitioners relied upon that list and Mr. Gale’s oral            
          testimony as evidence of the value of assets owned and                      
          liabilities owed in 2001 immediately before the discharge.                  
          Having observed Mr. Gale’s appearance and demeanor at trial, we             
          find his testimony to be honest, forthright, and credible.                  
          Immediately before the discharge of indebtedness, without regard            
          to Mr. Gale’s CSRS pension benefit and thrift savings account,              
          petitioners had liabilities of $92,839 which exceeded the $29,968           
          value of their assets by $62,871, shown as follows:                         






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