- 38 - situation we consider in this case. In the section 642 setting, the estate or trust and the beneficiary are wholly separate taxpayers, and a carryback to years before the commencement of the estate or trust would not be a logical extension of the succession concept in that setting. Conversely, a bankruptcy estate subsists as a parallel portion of the same taxpayer, the debtor. The bankruptcy estate is allowed to use the debtor’s precommencement losses to offset any portion of the estate’s income during the bankruptcy proceeding. Upon the termination of the bankruptcy estate, the losses of the bankruptcy estate received by the debtor may, in part, include the debtor’s precommencement losses. Those differences make inappropriate any attempt to draw an analogy between section 1398(g) and (i), and section 642(h).18 The parties have not provided any precedent or in-depth and consequential deliberation concerning the question we consider. Although a few cases have peripherally focused on this question, no analysis or legislative history exists from which guidance may prudently be sought. Respondent referenced a few commentators’ prognoses of how losses from a bankruptcy would be treated. Those commentaries are terse and contain no analysis, policy 18 As previously explained, sec. 1398 contemplates the use of the debtor’s tax attributes by the bankruptcy estate and their return to the debtor upon the termination of the estate. This same reasoning distinguishes the analogy to sec. 642(h).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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