Herschel H. and Roberta S. Hoopengarner - Page 17

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          petitioners’ financial hardships, and assuming arguendo that                
          petitioners did establish basis using the public property                   
          records, and did establish that they were insolvent,4 petitioners           
          are incorrect as a matter of law in stating that they had net               
          operating losses.  Federal law provides that, generally, a                  
          taxpayer must recognize income from the discharge of                        
          indebtedness.  Sec. 61(a)(12); United States v. Kirby Lumber Co.,           
          284 U.S. 1 (1931).  The Code provides an exception to the                   
          recognition of cancellation of indebtedness income in cases where           
          the discharge occurs when the taxpayer is insolvent.  See sec.              
          108(a)(1)(B); see also Babin v. Commissioner, 23 F.3d 1032, 1035            
          (6th Cir. 1994), affg. T.C. Memo. 1992-673.  Section 108(b)(1)              
          provides in turn that, upon discharge, the taxpayer must reduce             
          certain tax attributes by the amount of the cancellation of                 
          indebtedness income excluded from gross income.  Section                    
          108(b)(2) provides that NOLs are the first tax attribute to be              
          reduced,5 and section 108(b)(3) provides that they be reduced               
          dollar-for-dollar by the amount of the cancellation of                      
          indebtedness income excluded under section 108(a).  Petitioners             
          have not proven that they did not have cancellation of                      


               4  The Court makes no such findings.                                   
               5  A taxpayer can elect to reduce the basis of any                     
          depreciable property by the amount of debt discharged before                
          reducing the amount of any other tax attributes.  Sec. 108(b)(5).           
          Petitioners did not make such an election.                                  





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