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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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