Roderick E. Carlson and Jeanette S. Carlson - Page 21




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          Id. at 1113.  The Board explained in Cole that it excluded the              
          value of the taxpayer’s equity in certain life insurance policies           
          from its determination of the value of the taxpayer’s assets                
          because “Under the applicable law of New York * * * such equity             
          in insurance was free from claims of creditors.”  Id.                       
               We reject petitioners’ argument that we apply Cole in this             
          case.  When Congress enacted the insolvency exception into the              
          Code as section 108(a)(1)(B), one of the related provisions it              
          also enacted is section 108(e)(1).8  Section 108(e)(1) provides             
          that, for purposes of title 26 of the United States Code (i.e.,             
          the Internal Revenue Code, including section 61(a)(12)), “there             
          shall be no insolvency exception from the general rule that gross           
          income includes income from the discharge of indebtedness”                  
          except as provided in section 108(a)(1)(B).  As the Supreme Court           

               8When Congress “codified the net assets test in section                
          108(a)(1)(B), (a)(3), and (d)(3),” Merkel v. Commissioner, 109              
          T.C. at 473, it codified the net assets test developed by Dallas            
          Transfer & Terminal Warehouse Co. v. Commissioner, 70 F.2d 95               
          (5th Cir. 1934), revg. 27 B.T.A. 651 (1933), and Lakeland Grocery           
          Co. v. Commissioner, 36 B.T.A. 289 (1937).  It did not codify the           
          application of the net assets test by Cole v. Commissioner, 42              
          B.T.A. 1110 (1940).  The committee reports accompanying H.R. 5043           
          make no reference to and do not describe the holding of Cole,               
          whereas those reports do refer to and describe the holdings of              
          Dallas Transfer & Terminal Warehouse Co. and Lakeland Grocery Co.           
          Nor do those committee reports refer to the two cases that                  
          applied Cole v. Commissioner, supra, which had been decided as of           
          the time Congress passed the 1980 Bankruptcy Tax Act, i.e., Davis           
          v. Commissioner, 69 T.C. 814, 833-834 (1978), and Estate of                 
          Marcus v. Commissioner, T.C. Memo. 1975-9.  See also Babin v.               
          Commissioner, T.C. Memo. 1992-673, affd. on other grounds 23 F.3d           
          1032 (6th Cir. 1994); Hunt v. Commissioner, supra, decided after            
          Congress passed that Act.                                                   





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