Douglas E. Kahle and Barbara W. Kahle - Page 5

            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 have                            




Page:  Previous  1  2  3  4  5  6  7  8  9  Next

Last modified: May 25, 2011