Roderick E. Carlson and Jeanette S. Carlson - Page 9




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          petitioners’ fishing permit should be excluded in performing the            
          insolvency calculation under section 108(d)(3).  If the Court               
          were to sustain petitioners’ position, the parties agree that               
          petitioners would be insolvent within the meaning of section                
          108(d)(3) and that the insolvency exception of section                      
          108(a)(1)(B) would exclude from their gross income for the year             
          at issue $42,142 of DOI income resulting from the foreclosure               
          sale on February 8, 1993.                                                   
               Respondent counters that Cole v. Commissioner, supra, and              
          Hunt v. Commissioner, supra, on which petitioners rely do not               
          apply in the instant case.  According to respondent, the plain              
          meaning of the word “assets”, as well as the legislative history            
          of section 108(a)(1)(B), rejects the narrow definition of that              
          word which petitioners proffer.  Respondent argues in the alter-            
          native that even if the Court were to sustain petitioners’                  

               5(...continued)                                                        
          applicable State law are to be excluded in the insolvency calcu-            
          lation under that section.  Conversely, assuming arguendo that we           
          were to hold that the word “assets” as used in sec. 108(d)(3)               
          does not include assets that are exempt from the claims of                  
          creditors under applicable State law and that a total of $62,800            
          of petitioners’ other assets are exempt from the claims of                  
          creditors under applicable State law, petitioners would not be              
          insolvent within the meaning of sec. 108(d)(3) unless petition-             
          ers’ fishing permit were exempt from the claims of creditors                
          under applicable State law and were to be excluded in performing            
          the insolvency calculation under that section.  Consequently, we            
          shall address petitioners’ argument regarding the meaning of the            
          word “assets” as used in sec. 108(d)(3) in the context solely of            
          petitioners’ fishing permit, and not in the context of petition-            
          ers’ other assets, all of which they claim are exempt from the              
          claims of creditors under applicable State law.                             





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