Timothy J. Coburn - Page 15

                                       - 15 -                                         
               In the instant case, respondent confused both the facts and            
          the holding of Cozzi.  Respondent’s trial memorandum stated as              
          follows:                                                                    
                    I.R.C. � 61(a)(12) provides that gross income                     
               includes income from discharge of indebtedness.  On                    
               April 15, 2000, when petitioner’s liability for a loan                 
               from CareMatrix for $621,980 plus interest of $128,080                 
               (total of $750,000,) became due, petitioner defaulted.                 
               Petitioner had executed a non-recourse promissory note,                
               and the only collateral for the loan involved                          
               petitioner’s 57,248 shares of common stock of                          
               PhyMatrix.  CareMatrix opted not to take those shares                  
               of stock pursuant to the default.                                      
                    In Cozzi v. Commissioner, 88 T.C. 435 (1987), the                 
               lender abandoned the loan’s security due to its nominal                
               value.  The Court determined that there was income from                
               discharge of indebtedness income in that situation,                    
               stating:  “The moment it becomes clear that a debt will                
               never have to be paid, such debt must be viewed as                     
               having been discharged.”  Id. at 445.                                  
                    Thus, petitioner received $750,000 in income from                 
               discharge of indebtedness for the year 2000 pursuant to                
               section 61(a)(12).                                                     
          Respondent’s trial memorandum therefore suggests that Cozzi,                
          stands for the proposition that a debtor realizes discharge of              
          indebtedness income upon the lender’s abandonment of collateral             
          securing a nonrecourse loan.  Respondent’s opening brief also               
          cites Cozzi, for the proposition that a lender’s abandonment of             
          collateral securing a nonrecourse loan results in discharge of              
          indebtedness income to the borrower, and the opening brief argues           
          at length that CareMatrix abandoned the collateral in 2000.                 
          Respondent’s reply brief summarizes respondent’s position as                
          follows:  “In sum, * * * [CareMatrix] ignored all of its rights             





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