Carl E. Jones and Elaine Y. Jones - Page 48

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            business in 1991.27  Respondent bears the burden of proving the                           
            amount of the increased deficiency.  Rule 142(a).                                         
                  Petitioner contends that INI did not cease doing business in                        
            1991, and that it is a corporation in good standing with the                              
            State of Georgia.  Petitioner submits that INI's participation in                         
            the earlier case tried before this Court, and in an appeal of our                         
            decision in that case to the Court of Appeals for the Eleventh                            
            Circuit, is evidence of its business activity.  Furthermore,                              
            petitioner contends that the Internal Revenue Service's (IRS)                             
            notice of levy issued to INI on June 18, 1992, is evidence that                           
            the IRS continues to deal with INI as an active, viable entity.                           
            Thus, petitioner asserts that he did not receive income from the                          
            discharge of indebtedness in 1991.                                                        
                  Both parties rely on the returns filed by INI for its fiscal                        
            years ended 1990 through 1994 to prove their respective                                   
            positions.                                                                                
                  The issue is not whether INI, Inc., was in business in 1991,                        
            but whether petitioner received income from the discharge of                              
            indebtedness in that year.  The forgiveness of an indebtedness is                         
            deemed to have occurred when it becomes reasonable to assume that                         
            the debt will probably never be paid.  Exchange Sec. Bank v.                              
            United States, 492 F.2d 1096, 1099 (5th Cir. 1974) (cancellation                          


            27  We have found that the $128,429 of petitioner's indebtedness                          
            to Spalding that was transferred to INI in the splitup was not a                          
            distribution to petitioner.  Therefore, the balance of the loan                           
            account at the end of 1991 was at least $150,196 ($21,767 plus                            
            $128,429).                                                                                


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