Michael Correra - Page 9

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            of the foregoing $3,434,500 assets.  Accordingly, his argument                               
            continues, if such claims are eliminated he should be treated as                             
            insolvent, and he thus qualifies for the insolvency exception of                             
            section 108.  However, even if section 108 were otherwise                                    
            applicable, contrary to our conclusion above, the difficulty with                            
            that position is that he has presented no evidence as to the                                 
            worthlessness of those claims.  And, in the absence of any                                   
            clarifying evidence, the mere fact that the trustee in bankruptcy                            
            may not have pursued those claims or may not have realized on any                            
            of them for whatever reason is hardly sufficient to conclude that                            
            petitioner has carried his burden of proof.  The fact that this                              
            case was submitted to us on a stipulation of facts does not                                  
            relieve petitioner of his burden of proof.  Borchers v.                                      
            Commissioner, 95 T.C. 82, 91 (1990), affd. 943 F.2d 22 (8th Cir.                             
            1991).                                                                                       
                  We hold that on this record there is no valid basis for                                
            changing our conclusion that section 108(a)(1)(B) is inapplicable                            
            here.  In the circumstances, we do not even reach the question                               
            posed by section 108(a)(3)3 which in effect limits the amount                                
            excludable to the amount necessary to bring the taxpayer up to                               


                  3  Section 108(a)(3) states:                                                           
                  (3) Insolvency exclusion limited to amount Of insolvency.--                            
                  In the case of a discharge to which paragraph (1)(B)                                   
                  applies, the amount excluded under paragraph (1)(B) shall                              
                  not exceed the amount by which the taxpayer is insolvent.                              




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