Dudley B. and La Donna K. Merkel - Page 29

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          Fashion Park, Inc. v. Commissioner, supra at 604.  The basis of             
          the decision in Landreth is that a guarantor does not obtain                
          initially a nontaxable increase in assets for his promise.                  
          Therefore, respondent may not use Landreth to argue that, because           
          relief from a guarantee does not give rise to discharge of                  
          indebtedness income, since a guarantee is not a liability,                  
          considering a guarantee as a liability for purposes of the                  
          statutory insolvency calculation results in an inconsistent                 
          application of section 108.                                                 
               Respondent's argument, in any event, reveals a more                    
          fundamental misconception regarding the insolvency exclusion and            
          its related provisions.  Without any justification in the Code or           
          in the legislative history of section 108, respondent assumes               
          that the insolvency exclusion and section 61(a)(12), which                  
          defines gross income as including income from discharge of                  
          indebtedness,15 are identical in terms of legislative purpose;              
          i.e., that the scope of both provisions is the definition of the            
          term “gross income”.  When respondent argues that Congress could            
          not have intended for taxpayers to use liabilities, the discharge           
          of which does not give rise to income, to exclude discharge of              



          15   For purposes of sec. 108, sec. 108(d)(1) defines the term              
          “indebtedness of the taxpayer” as “any indebtedness--(A) for                
          which the taxpayer is liable, or (B) subject to which the                   
          taxpayer holds property.”  There is no indication that the term             
          “indebtedness” in sec. 61(a)(12) with respect to a particular               
          taxpayer differs from the definition provided in sec. 108(d)(1).            




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