Dudley B. and La Donna K. Merkel - Page 28

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               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.”);                 





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