William C. and Gene E. Witzel - Page 3




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          bankruptcy, Water Products excluded the COD income from its gross           
          income.                                                                     
               In 1992, petitioner had suspended losses (under section                
          1366(d)) from Water Products in the amount of $2,964,481 and a              
          zero basis in his Water Products stock before considering the               
          effect of the excluded COD income.                                          
               For 1993, petitioners filed a joint Federal income tax                 
          return.  On the return, petitioners increased the basis in the              
          Water Products stock by the amount of the excluded COD income               
          ($5,404,323).  As a result of the increased basis, in 1993,                 
          petitioners deducted suspended losses of $2,549,251.                        
          Discussion                                                                  
               Petitioners argue that they were entitled to increase their            
          basis in Water Products stock by their share of the excluded COD            
          income.  In Nelson v. Commissioner, 110 T.C. 114 (1998), we held            
          that COD income excluded by section 108(a) did not pass through             
          to an S corporation shareholder under section 1366(a)(1)(A);                
          therefore, the S corporation shareholder could not increase his             
          basis in the stock under section 1367(a)(1).                                
               Petitioners do not distinguish this case from Nelson.                  
          Petitioners, however, contend that in Nelson we failed to                   
          consider the following legal issues:  (1) The reduction of tax              
          attributes dictated by section 108(b) is an alternative to                  
          taxation and does not mean that excluded COD income is not tax-             





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