shared these liabilities with various codebtors. A large number
of codebtors could have reduced Mr. Kahle's share of the debt
discharged. But, the discharge by the bankruptcy court did not
list so many codebtors as to make it likely that, in the end, Mr.
Kahle's share of the liability ultimately discharged could have
been less than the amount of the NOL, so that some portion of the
NOL would have been returned unused to him. In addition, there
is no evidence in the record that there was any depreciable
property in the bankruptcy estate in respect of which an election
under section 108(b)(5) was made, nor did petitioners offer any
evidence that the basis of any such property could have been
reduced by the discharge of debt under section 108(b)(5) in place
of a reduction of the NOL. In any event, the burden was on
petitioners to prove any such ameliorating circumstances. Rule
142(a); Welch v. Helvering, 290 U.S. 111, 114 (1933). That
burden is not lessened in a fully stipulated case. Borchers v.
Commissioner, 95 T.C. 82, 91 (1990), affd. 943 F.2d 22 (8th Cir.
1991).
In sum, we hold that the 1990 NOL was not available for use
by petitioners in 1991. Firsdon v. United States, supra.
Addition to Tax and Penalty
Respondent determined an addition to tax for delinquency
under section 6651(a)(1) and a penalty for substantial
understatement under section 6662(d). Petitioners have the
burden of proof. Rule 142(a); Tippin v. Commissioner, 104 T.C.
518, 533 (1995). Petitioners have conceded that the return for
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