Mel T. Nelson - Page 36

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               There’s a significant difference between COD under section             
          108, on the one hand, and items such as life insurance proceeds             
          under section 101 and tax-exempt bond interest under section 103,           
          on the other.  The reference to “tax-exempt” income in section              
          1366(a)(1)(A) is clearly intended to include receipts excluded              
          from gross income under such sections as 101 and 103, which                 
          represent returns on or arising from investment by or on behalf             
          of the recipient.  The reference does not include excluded COD              
          that is attributable to loans to the S corporation by third-party           
          creditors; the entire structure of the subchapter S regime denies           
          basis to shareholders who lack any such investment.  See, e.g.,             
          Spencer v. Commissioner, 110 T.C. ___, ___ (1998), and cases                
          cited at slip op. 25.                                                       
                                         IV.                                          
               In Winn v. Commissioner, supra, the introduction of                    
          Respondent’s Memorandum of Facts and Law in Support of                      
          Respondent’s Objection to Petitioner’s Cross Motion for Partial             
          Summary Judgment in docket No. 5359-96 observes in passing that,            
          even if the taxpayer should be entitled to the upward basis                 
          adjustment he claims, his right to take it into account for                 
          current tax purposes would be subject to the at-risk limitations            
          under section 465.                                                          


               6(...continued)                                                        
          matter, etc.).                                                              




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