Eric B. Benson, et al. - Page 76

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          1994, or, alternatively, in 1988.  We agree and sustain                     
          respondent’s determination that the Bensons’ debt was forgiven in           
          1994.  “Income from discharge of indebtedness" is included within           
          the broad definition of income.  See sec. 61(a)(12).  “The                  
          underlying rationale for such inclusion is that to the extent a             
          taxpayer is released from indebtedness, he or she realizes an               
          accession to income due to the freeing of assets previously                 
          offset by the liability.”  Jelle v. Commissioner, 116 T.C. 63, 67           
          (2001) (citing United States v. Kirby Lumber Co., 284 U.S. 1, 3             
          (1931)).  In July 1994, Bradac stated to Burton that without an             
          explanation such unpaid loans constituted income in the year the            
          indebtedness was discharged.  ERG filed its 1988 tax return on              
          August 1, 1994.  Burton’s indebtedness was discharged in 1994               
          when it was eliminated from ERG’s return.  It was at that                   
          “‘moment it * * * [became] clear that a debt will never have to             
          be paid, such debt must be viewed as having been discharged.’”              
          Rinehart v. Commissioner, T.C. Memo. 2002-71 (quoting Cozzi v.              
          Commissioner, 88 T.C. 435, 445 (1987)).  Accordingly, we find and           
          hold that Burton had cancellation of indebtedness income of                 
          $88,291 in 1994.                                                            
               3.  Partner Expenses--Baden Spiel Haus Partnership                     
               Burton was a 25-percent partner in the Baden Spiel Haus                
          partnership, which owned and operated a ski cabin in California.            
          Respondent determined that the Bensons were not entitled to                 






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