-18- A solvent debtor is capable of meeting his financial obligations because his assets equal or exceed his liabilities. That excess (if any) is not increased when an obligation that offsets assets is paid in full because the reduction in liabilities is equal to the reduction in assets. If the reduction in liabilities exceeds the reduction in assets, then, under the freeing-of-assets theory, the solvent debtor has realized a gain to the extent of that excess. See, e.g., Milenbach v. Commissioner, 106 T.C. 184, 202 (1996); Cozzi v. Commissioner, 88 T.C. 435, 445 (1987) (“The general theory is that to the extent that a taxpayer has been released from indebtedness, he has realized an accession to income because the cancellation effects a freeing of assets previously offset by the liability arising from such indebtedness.”) (citing United States v. Kirby Lumber Co., 284 U.S. 1 (1931)).8 Pursuant to the 8 That understanding of the nature of liabilities comports with the ordinary and common meaning of the term “liability”: “That which one is under obligation to pay, or for which one is liable. Specif., in the pl., one's pecuniary obligations, or debts, collectively;--opposed to assets.” Webster's New International Dictionary 1423 (2d ed. 1940). It should also be noted that the freeing-of-assets theory, much like its descendant the net assets test, has been criticized: A particularly troublesome legacy of * * * [the passage in Kirby Lumber that the transaction “made available $137,521.30 assets previously offset by the obligation of bonds now extinct”] has been the tendency of some courts to read Kirby Lumber as holding that it is the freeing of assets on the cancellation of indebtedness, rather than the cancellation itself, that (continued...)Page: Previous 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Next
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