- 34 - of pretermination NOLs to the bankruptcy years; in other words, whether petitioner is limited to posttermination (1997 and later) year carryforwards because of the estate’s application of the debtor’s precommencement losses and the estate’s losses to any of the debtor’s precommencement and the estate’s postcommencement income. Although the statute expressly prohibits carrybacks by the debtor with respect to years before the commencement of the bankruptcy, there is no such limitation with respect to carryforwards to postcommencement years. Because of the parallel treatment on the income side of the equation (requiring the debtor and the estate to report only the income to which each is entitled), it follows that the debtor’s precommencement and the estate’s losses, to the extent not fully absorbed during the bankruptcy years, should be applied to any parallel income of the debtor during those same years. Although the ordering of such losses (computation and application) could become complex, it is, nevertheless, appropriate. There is nothing in section 1398 which would prohibit such treatment.15 Indeed, the approach of section 1398 regarding the income side would seem to promote this result with respect to the losses. If a debtor were unable to apply post- or pre-bankruptcy losses to 15 Other than the limitation on the debtor’s ability to apply carrybacks to prebankruptcy years, sec. 1398 does not provide any rules or limitations as to the calculation or use of carrybacks or carryovers of NOLs. Sec. 1398 references sec. 172 for such matters.Page: Previous 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 Next
Last modified: May 25, 2011