Roderick E. Carlson and Jeanette S. Carlson - Page 15




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          payer’s] dealings it made available $137,521.30 [of] assets                 
          previously offset by the obligation of bonds now extinct.”  Id.             
          at 3.                                                                       
               Several years after the Supreme Court decided Kirby Lumber             
          Co., the U.S. Court of Appeals for the Fifth Circuit distin-                
          guished that case and established an insolvency exclusion to the            
          rule that the Supreme Court had announced in that case.  See                
          Dallas Transfer & Terminal Warehouse Co. v. Commissioner, 70 F.2d           
          95 (5th Cir. 1934), revg. 27 B.T.A. 651 (1933).  In Dallas                  
          Transfer & Terminal Warehouse Co., the taxpayer was relieved of             
          indebtedness as the lessee of certain real property with respect            
          to unpaid rent and other bills totaling $107,881 when it conveyed           
          to the lessor of that property certain real property of lesser              
          value (i.e., $42,507) in which the taxpayer’s equity at the time            
          of conveyance was $17,507.  See id.  The Court of Appeals held              
          that the taxpayer did not realize income as a result of that                
          transaction.  See id. at 96.  In so holding, the Court of Appeals           
          stated:                                                                     
               In effect the transaction was similar to what occurs in                
               an insolvency or bankruptcy proceeding when, upon a                    
               debtor surrendering, for the benefit of his creditors,                 
               property insufficient in value to pay his debts, he is                 
               discharged from liability for his debts.  This does not                
               result in the debtor acquiring something of exchange-                  
               able value in addition to what he had before.  There is                
               a reduction or extinguishment of liabilities without                   
               any increase of assets.  There is an absence of such a                 
               gain or profit as is required to come within the ac-                   
               cepted definition of income. * * * It hardly would be                  
               contended that a discharged insolvent or bankrupt                      





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