- 33 - responsible for the income tax attributes for any assets that the debtor retains outside of the bankruptcy proceeding. In effect, the statute creates two separate, but parallel, taxpayers during the bankruptcy estate, followed by the recombination of both their attributes into one upon the estate’s termination.14 Significantly, with respect to the tax attributes, the debtor/taxpayer is the predecessor to and successor of the bankruptcy estate. The parties agree that section 1398 permits a debtor to carry forward either losses sourced in tax years prior to the bankruptcy commencement or losses which the debtor acquired from the estate. The dispute concerns whether the losses may be carried forward from the commencement of the bankruptcy proceeding or are limited to the period beginning with the termination of the estate. So, for example, we consider whether petitioner may carry forward his own prebankruptcy NOL, to the extent not used or absorbed by the estate, to his 1995, 1996, and/or 1997 tax years. This matter is further complicated by the two parallel but separate taxpayers (estate and debtor) for the 1995, 1996, and 1997 tax years. Ultimately, the question is whether the bankruptcy estate becomes the preeminent or sole taxpayer (to petitioner’s exclusion) for purposes of carryforward 14 We note that only the estate is expressly permitted to carry back losses to precommencement years during the bankruptcy. Sec. 1398(j)(2)(A).Page: Previous 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 Next
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