Jerry Myers Johnson - Page 4




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          excluded from his gross income because the discharge occurred               
          when he was forced into early retirement by "city and state                 
          government representatives [who] illegally and unjustly inter-              
          fered in * * * [his] career as a teacher".                                  
               Where a recourse mortgage has been discharged, cancellation            
          of indebtedness income arises to the extent the amount of the               
          debt exceeds the fair market value of the property.  See Gehl v.            
          Commissioner, 102 T.C. 784, 786 (1994), affd. without published             
          opinion 50 F.3d 12 (8th Cir. 1995); Bialock v. Commissioner, 35             
          T.C. 649, 660 (1961); sec. 1.1001-2(c), Example (8), Income Tax             
          Regs.  Based on all the surrounding facts and circumstances, a              
          debt is considered discharged the moment it becomes clear that it           
          will never be repaid.  See Cozzi v. Commissioner, 88 T.C. 435,              
          445 (1987).                                                                 
               Respondent argues that, in 1994, when petitioner was dis-              
          charged from having to pay the balance due on foreclosure, he               
          realized cancellation of indebtedness income.  Petitioner makes             
          no argument to the contrary.  For example, he presents no                   
          evidence suggesting that the unpaid recourse liability survives             
          as a legally enforceable obligation against him or, alterna-                
          tively, that he had no obligation to repay the loan initially               
          advanced by PNC.  Moreover, petitioner does not dispute that, if            
          the indebtedness is found to be taxable, the amount includable is           
          $31,525, the difference between the outstanding loan and the                





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