Sooren Hovhannissian and Estate of Mary Hovhannissian, Deceased, Sooren Hovhannissian, Executor - Page 19

                                       - 19 -                                         

          property.  See Conners v. Commissioner, supra at 546-547                    
          (reacquisition of real property governed by sec. 1038 even though           
          substantial improvements made).  Under section 1038(b)(1),                  
          petitioner must recognize and include in gross income the                   
          previously excluded balance of the initial cash payment,                    
          $383,288.                                                                   
          2.   Disallowance of Loss Related to Reacquisition Governed                 
               by Section 1038                                                        
               Petitioner argues in the alternative that, as a matter of              
          law, he is entitled, under section 165, to claim a loss on the              
          reacquisition.  Section 1038(a) forestalls a seller, incident to            
          a section 1038 reacquisition of real property, from claiming a              
          bad debt deduction under section 166 for the default in payment             
          of the purchase money mortgage debt secured by that property.               
          Rose v. Commissioner, T.C. Memo. 1987-19, affd. 855 F.2d 65 (2d             
          Cir. 1988).  The language of section 1038(a), which states that             
          “no gain or loss shall result to the seller from such                       
          reacquisition”, see also sec. 1.1038-1(a)(1), Income Tax Regs.,             
          also disallows other kinds of losses, including those that might            
          be claimed under section 165.  Disallowing any loss claimed under           
          section 165 is consistent with the broader congressional intent             
          in enacting section 1038:                                                   
               Your committee also believes that it is desirable to                   
               have a uniform rule applicable in case of repossession                 
               of real property, whether the initial sale was at a                    
               gain or loss * * * it is desirable to have the same                    
               rule applicable whether the value of the property after                




Page:  Previous  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  Next

Last modified: May 25, 2011