Oren L. Benton - Page 19

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               Accordingly, once a plan vesting an estate’s assets in a               
          liquidating trust is confirmed, the estate is generally not                 
          required to report or pay tax on gains derived by the trust from            
          disposition of those assets.  In that respect, the estate lacks             
          the potential for the incidence of tax or use of tax losses.                
          Conversely, at that time the debtor is being released for the               
          purpose of rehabilitation.  Those factors are most conducive to             
          and support an approach where the estate’s tax attributes be                
          returned to the debtor.6                                                    
               In the case before us, all but two of the estate’s assets              
          were transferred to the liquidating trust.  The two assets were             
          the stock of S corporations, which the estate was permitted to              
          hold as a mere nominee in order to maintain S corporation status.           
          Under the terms of the plan, the estate did not maintain control            
          or, in effect, ownership of the stock.  Accordingly, there is no            
          reason to delay the transfer of the estate’s tax attributes to              
          the debtor/petitioner in this case.  We hasten to note that as of           
          the time of the summary judgment motion in 2003, petitioner’s               
          chapter 11 bankruptcy proceeding had not been formally closed.              
          Under those circumstances, waiting until the closing of the                 
          chapter 11 proceeding would be unjust and a possible detriment to           

               6 The parties in this case do not contend that the trustee             
          or the liquidating trust should be considered as a part of the              
          estate for purposes of sec. 1398 or the use of the estate’s or              
          the debtor’s tax attributes.                                                

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