Oren L. Benton - Page 38

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          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).                    

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