Discussion Petitioners argue that, even though they did not make the short-taxable-year election under section 1398(d)(2), they should be allowed to use the 1990 NOL in the year of discharge first to reduce their 1991 income, before the inevitable reduction by the amount of the discharge. They base this argument on their interpretation of section 108(b)(4) and section 108(d)(8). Section 108(d)(8), which specifies the estate as the taxpayer, does not specifically refer to the ordering rule of section 108(b)(4) and confines such reference to paragraphs (1) and (5) of subsection (b) of section 108. Thus, according to petitioners, the reductions under section 108(b) occur after the individual taxpayer, not the estate, determines his or her tax liability for the year of discharge pursuant to section 108(b)(4), using whatever tax attributes are left in the bankruptcy estate. In other words, petitioners claim that the individual taxpayer gets one last chance to use up the NOL before it is reduced by the amount of debt discharged. We divide our analysis into two parts. First, we dispose of the question whether the 1990 NOL is available to petitioners as a carryforward to 1991. The answer to this question is clearly in the negative. Upon the filing of the petition in bankruptcy on December 6, 1991, the NOL passed to the bankrupt estate and belonged to the estate until discharge on March 18, 1992. Mr. Kahle did not file an election to adopt a short taxable year in respect of which the 1990 NOL could havePage: Previous 1 2 3 4 5 6 7 8 9 Next
Last modified: May 25, 2011