Roderick E. Carlson and Jeanette S. Carlson - Page 28




                                       - 28 -                                         
          Congress not to define the term “insolvent” in section 108(d)(3)            
          to exclude specifically such exempt assets in determining whether           
          a debtor is insolvent for purposes of section 108 was inten-                
          tional.13  We further conclude that Congress did not intend to              
          exclude assets exempt from the claims of creditors under applica-           
          ble State law from a taxpayer’s assets for purposes of determin-            
          ing whether the taxpayer is insolvent within the meaning of                 
          section 108(d)(3).  If Congress had intended to exclude such                
          exempt assets from a taxpayer’s assets in determining whether the           
          taxpayer is insolvent for purposes of section 108, Congress would           
          have so stated in section 108(d)(3).  It did not.                           
               Our conclusion that Cole v. Commissioner, 42 B.T.A. 1110               
          (1940), has no application in the instant case also leads to a              
          result that comports with the intention of Congress in enacting             


               13In this regard, Myron M. Sheinfeld (Mr. Sheinfeld), a                
          witness who testified at the Congressional hearings on H.R. 5043            
          as passed by the House of Representatives (House), see H.R. 5043,           
          96th Cong., 1st Sess. (1979), pointed out at those hearings that            
          the definition of “insolvent” in H.R. 5043 as passed by the House           
          was different from the definition of that term in title 11 and              
          that “the differing definitions of insolvent will, unless made              
          consistent, cause substantial trouble and litigation.”  Hearings            
          on H.R. 5043 Before the Subcomm. on Select Revenue Measures of              
          the House Comm. on Ways and Means (Hearings on H.R. 5043), 96th             
          Cong., 1st Sess. 41 (1979) (statement of Myron M. Sheinfeld,                
          Chairman, Committee on Tax Matters, National Bankruptcy Confer-             
          ence).  Mr. Sheinfeld recommended that Congress adopt as the                
          definition of the term “insolvent” in the final version of H.R.             
          5043 the same definition of the term “insolvent” that Congress              
          had adopted in sec. 101(26) of the 1978 Bankruptcy Reform Act, 11           
          U.S.C. sec. 101(26) (Supp. II, 1978).  See Hearings on H.R. 5043,           
          supra at 43.  Congress chose not to do so.                                  





Page:  Previous  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  Next

Last modified: May 25, 2011