-30- indebtedness income, respondent fails to recognize that the apparent inconsistency may be an inconsistency in policy. As Congress enacted the insolvency exclusion, it eliminated the net assets test as a judicially created exception to the general rule of income from the discharge of indebtedness. See sec. 108(e)(1).16 The fundamental difference between the insolvency exclusion and the net assets test is that the insolvency exclusion is applicable only if there exists income from the discharge of indebtedness, whereas the net assets test engages in the threshold inquiry. Therefore, unlike the net assets test, the insolvency exclusion does not necessarily invade the province of section 61(a)(12). Essentially, the insolvency exclusion defers to section 61(a)(12) as to the definition of the term “gross income”, but represents a policy judgment that certain of that income should not give rise to an immediate tax liability. The relevant committee reports intimate that the policy judgment underlying 16 Cf. Bittker & McMahon, Federal Income Taxation of Individuals, par. 4.5, at 4-26 (2d ed. 1995) (“by virtue of � 108(e)(1), � 108(a)(1) now preempts the field, precluding any other `insolvency exception.' This attempt to outlaw judge-made insolvency exceptions is technically flawed because it applies only if the taxpayer realizes `income from the discharge of indebtedness' and, hence, does not help in determining whether a transaction by an insolvent debtor generates any income. The message will be heeded, however, even though the draftsman blundered.” (fn. ref. omitted)). It appears, however, that the draftsman did not blunder because sec. 108(e)(1) applies for purposes of title 26 of the United States Code (the Internal Revenue Code) without regard to sec. 108(a)(1).Page: Previous 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 Next
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