Oren L. Benton - Page 23

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                    As a consequence, sec. 346(i)(2) remains                          
               inapplicable to the federal tax laws, even though it                   
               was originally drafted with those laws in mind.  [Id.]                 
          The Court of Appeals also pointed out that, while Congress had              
          section 346(i)(2) of the Bankruptcy Code in mind when enacting              
          section 1398(i), Congress drafted section 1398(i) to stand on its           
          own and have distinct differences from section 346(i)(2) of the             
          Bankruptcy Code.                                                            
               It was not a matter of coincidence that section 346(i)(2)              
          of the Bankruptcy Code and section 1398(i) were enacted                     
          approximately 2 years apart.  Congress, in the first instance,              
          used the term “closed” in section 346 of the Bankruptcy Code and            
          then chose to use the term “termination” in the subsequent                  
          enactment of section 1398.  If Congress had intended for tax                
          attributes to pass from a bankruptcy estate to a debtor at the              
          same point in the proceeding under titles 11 and 26 of the United           
          States Code, the term “closed” or “termination” could have been             
          used in both provisions.  However, Congress chose not to use the            
          same language, and some distinction may reasonably be drawn from            
          this difference.                                                            
               Another possible reason for Congress’s use of the phrase               
          “termination of an estate” in section 1398(i) was to provide                
          symmetry for use of that phrase in subsection (f) of section                
          1398.  The phrase “termination of the estate” is also used in               
          section 1398(f)(2).  Where Congress uses the same term or phrase            

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