Philip D. and Eleanor G. Winn - Page 5

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          The shareholder’s basis, once computed, limits the amount of                 
          losses and deductions that may be taken into account by a                    
          shareholder for the taxable year.  Sec. 1366(d).                             
               In memoranda filed with the Court prior to the hearing on               
          these matters, several arguments were set forth in support of                
          respondent's motions, including the argument that discharge of               
          indebtedness income was “deferred” and not “tax-exempt income”               
          under section 1366(a).  (Respondent did not argue that section               
          1367(b)(1) precluded an increase in basis with respect to income             
          from discharge of indebtedness, presumably because, to the extent            
          at issue here, such income was not required to be included on                
          petitioners’ returns.)  At the hearing on these matters, however,            
          respondent abandoned those prior arguments and argued the                    
          following position:                                                          
                    If the Court were to hold that excluded COD                        
               [cancellation (discharge) of indebtedness] is an item                   
               of income under Code section 1366, then you would have                  
               to find that it flows through to the taxpayers and they                 
               increase their basis.  Respondent's position is that                    
               it's not an item of income and never flows through                      
               * * *                                                                   
          We deal here solely with respondent’s “final” position.                      
               Respondent's position is based on section 1.61-12(a), Income            
          Tax Regs., which states in part:  "The discharge of indebtedness,            
          in whole or in part, may result in the realization of income",               
          and on section 1.61-12(b), Income Tax Regs., which states in                 
          part:  "Income is not realized by a taxpayer * * * by virtue of              
          an agreement among his creditors not consummated under any                   




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