-33- purposes of the insolvency exclusion and its related provisions. Liabilities that a debtor will not likely be called upon to pay do not offset assets and cannot be recognized as liabilities within the analytical framework of the insolvency exclusion and its related provisions. The following example illustrates the need to show the likelihood of a demand for payment on a claimed liability. Assume that a debtor is discharged from indebtedness of $99 for payment of $98. Prior to the discharge, the debtor had cash in the amount of $100 and had guaranteed a friend's debt of $10, which friend was solvent and not likely to default (20 percent chance of total default) as the primary obligor. Petitioners would argue that the debtor in the example has assets of $100 and liabilities of $101 ($99 + 20 percent of $10 = $101) and is entitled to exclude the $1 of discharge of indebtedness income. The debtor in the example, under petitioners' test, avoids an immediate tax liability on the $1 of income by virtue of a liability that the debtor will not likely be called upon to pay (20 percent likelihood of occurrence of total default is less than “more likely than not”). In essence, the debtor avoids an immediate tax liability when the preponderance of the evidence suggests that the debtor has the ability to pay such tax, see supra sec. II.C.3. That result frustrates Congress' purpose in enacting the insolvency exclusion and its related provisions and, therefore, is unacceptable.Page: Previous 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 Next
Last modified: May 25, 2011