Douglas E. Kahle and Barbara W. Kahle - Page 8

            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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