Joyce E. and Jerome G. Beery - Page 14

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          Cir., Sept. 12, 1996); In re Page, 163 Bankr. 196, 197-198                  
          (Bankr. D. Kan. 1994).                                                      
               As explained in the recent opinion of the Court of Appeals             
          for the Sixth Circuit --                                                    

                    The * * * [taxpayers] argue that the statutory                    
               period was in fact tolled during the pendency of their                 
               bankruptcy proceeding, under section 346(i)(2) of the                  
               Bankruptcy Code, 11 U.S.C. sec. 346(i)(2).  [11 U.S.C.]                
               Section 346(i)(2), like I.R.C. section 1398(i),                        
               provides that at the close of a bankruptcy proceeding,                 
               debtors shall succeed to any unused tax attributes                     
               (including NOLs) to which the estate originally                        
               succeeded at the inception of the proceeding.  Unlike                  
               I.R.C. section 1398(i), though, 11 U.S.C. sec.                         
               346(i)(2) goes on to state:  "The debtor may utilize                   
               such tax attributes as though any applicable time                      
               limitations on such utilization by the debtor were                     
               suspended during the time during which the case was                    
               pending."  On its face, this language appears to                       
               support the * * * [taxpayers’] contention that I.R.C.                  
               section 6511(a) should have been tolled.  The sweep of                 
               this sentence is significantly circumscribed, however,                 
               by [11 U.S.C.] sec. 346(a), which states:                              
                         Except to the extent otherwise provided                      
                    in this section, subsections (b), (c), (d),                       
                    (e), (g), (h), (i), and (j) of this section                       
                    apply notwithstanding any State or local law                      
                    imposing a tax, but subject to the Internal                       
                    Revenue Code of 1986.                                             
               11 U.S.C. sec. 346(a).  In this context, "subject to                   
               the Internal Revenue Code" essentially means that the                  
               named Bankruptcy Code subsections, including the                       
               tolling provision in subsection (i), have no effect on                 
               the Federal tax laws.  Such is the holding in In re                    
               Page, 163 B.R. 196, 197-98 (Bankr. D. Kan. 1994), where                
               the court found [11 U.S.C.] sec. 346(a) "not extremely                 
               well-drafted" but clear enough to make subsection (i)                  
               applicable "only to State and local laws."  [Firsdon v.                
               United States, __ F.3d __ (6th Cir., Sept. 12, 1996)].                 







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