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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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