-34- 8. Conclusion In conclusion, a taxpayer claiming the benefit of the insolvency exclusion must prove (1) with respect to any obligation claimed to be a liability, that, as of the calculation date, it is more probable than not that he will be called upon to pay that obligation in the amount claimed and (2) that the total liabilities so proved exceed the fair market value of his assets. D. Application 1. Petitioners’ Burden of Proof As stated in section I.A., supra, the parties have stipulated that the exposure of each of the Merkels and the Hepburns pursuant to petitioners’ guarantees and the State tax exposure was $1 million and $490,000, respectively, and inclusion of the amount of their exposure under either obligation would make each of them insolvent to the extent of the full amount of the discharge of indebtedness income to each. Petitioners bear the burden of proof, Rule 142(a), but have proposed no findings of fact with respect to the other liabilities or the fair market value of the assets of either the Merkels or the Hepburns as of the measurement date. Thus, we must conclude that petitioners intend to prove that they (each of the Merkels and the Hepburns) were insolvent by showing that the amount of the liability under either, both, or the sum of petitioners’ guarantees and the State tax exposure was at least $490,000. If it were any less, we havePage: Previous 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 Next
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