-28- no liability to the guarantor that is being reduced by such payments which would increase the guarantor's net worth. This is so because the guarantee did not represent a liability to the guarantor in the first instance, it merely represented the possibility of a liability in the future upon the occurrence or nonoccurrence of some future event. * * * the guarantees were not a liability to petitioners within the meaning of I.R.C. � 108 for purposes of income or the insolvency exception to that income. To hold otherwise would result in an inconsistent application of this statute. If discharge of the contingent liability does not give rise to discharge income pursuant to I.R.C. � 108, Congress could not have intended for taxpayers to use that very same debt to render themselves insolvent under that section. [Fn. ref. omitted; emphasis added.] We believe that respondent misreads Landreth v. Commissioner, supra. The touchstone of this Court's analysis in Landreth is the absence of any “previously untaxed accretion in assets” that, by reason of the guarantor's being relieved of the contingent liability, “results in an increase in net worth”, id. at 813, and not the absence of a liability, the reduction of which increases the guarantor's net worth. Indeed, the cases relied on by this Court in Landreth, Commissioner v. Rail Joint Co., 61 F.2d 751 (2d Cir. 1932), affg. 22 B.T.A. 1277 (1931); Fashion Park, Inc. v. Commissioner, 21 T.C. 600 (1954), specifically rejected the rationale that respondent now suggests is the basis of this Court's decision in Landreth. See Commissioner v. Rail Joint Co., supra at 752 (“But it is not universally true that by discharging a liability for less than its face the debtor necessarily receives a taxable gain.”);Page: Previous 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 Next
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