Dudley B. and La Donna K. Merkel - Page 30

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          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).                             




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