-29- 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).Page: Previous 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 Next
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