-20- Congress has not specified the minimum level of certainty, but Congress’ indicated purpose of not burdening an insolvent debtor outside of bankruptcy with an immediate tax liability, see supra sec. II.B.2., together with the operation of the insolvency exclusion and its limitation under section 108(a)(3), in accordance with the statutory insolvency calculation, suggest that Congress intended to make a debtor’s ability to pay an immediate tax on income from discharge of indebtedness the controlling factor in determining whether a tax burden is imposed.9 Indeed, if a debtor has the ability to pay an immediate tax, in the sense that assets of the debtor exceed liabilities that he will be called upon to pay (and not in the sense that the debtor simply has assets on hand), the concern of imposing an unfair or unwarranted immediate tax burden vanishes. Ability to pay an immediate tax (i.e., the statutory notion of insolvency) is a question of fact and, although Congress has specifically instructed us that (in determining ability to pay) assets are to be valued at fair market value, see sec. 108(d)(3), Congress has not otherwise instructed us on how to make that finding or what measure of persuasion carries the burden of proof. A taxpayer with the burden of proof must, thus, persuade us of whether and in what amount he (as debtor) will be called 9 The Commissioner apparently agrees. See Rev. Rul. 92-53, 1992-2 C.B. 48, 49 (when a taxpayer’s liabilities exceed the fair market value of his assets, “the taxpayer is unable to pay either the indebtedness or the tax”).Page: Previous 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 Next
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