Dudley B. and La Donna K. Merkel - Page 33

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          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.                                                 






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