-16- thus, gross income is realized from the discharge. In essence, the net assets test is simply an examination of the debtor's net worth after he is discharged of indebtedness--an increase in net worth gives rise to income, but a decrease in negative net worth does not. 2. Codification of the Net Assets Test The net assets test has been criticized, particularly for employing an improper criterion in the definition of income.6 Congress, however, codified the net assets test in section 108(a)(1)(B), (a)(3), and (d)(3) as a means of determining an exclusion from gross income of an item of income derived from the discharge of indebtedness. Aside from the parallel descriptions in the committee reports of the preexisting law and of the proposed insolvency exclusion, see supra sec. II.B.2., that codification is apparent from the statutory insolvency calculation coupled with the insolvency exclusion limitation provided in section 108(a)(3), which together share the same underlying analytical framework as the net assets test. That framework requires an examination of the debtor's assets and 6 See, e.g., Eustice, “Cancellation of Indebtedness and the Federal Income Tax: A Problem of Creeping Confusion”, 14 Tax L. Rev. 225, 246-247 (1959); see also Estate of Newman v. Commissioner, 934 F.2d 426, 427 (2d Cir. 1991) (“confusion as to the theoretical basis for taxing discharges of indebtedness has spawned an illogical, judge-made `insolvency exception'”), revg. T.C. Memo. 1990-230. The net assets test and other judicially created insolvency exceptions have been described as “an emotional response by the courts to the plight of financially embarrassed debtors rather than * * * any strict application of judicial logic.” Eustice, supra at 246.Page: Previous 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Next
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