PK Ventures, Inc. and Subsidiaries, et al. - Page 39

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          basis in their Zephyr interest by their share of Zephyr’s COD               
          income resulting from its bankruptcy.  Petitioners further                  
          contended that Zephyr recognized COD income in 1989 and that the            
          Roses’ share of Zephyr’s COD income was, at a minimum,                      
          approximately $1,110,570.  Petitioners supported their argument             
          by Rose’s testimony at trial concerning Zephyr’s outstanding                
          liabilities in 1988 and 1989.  Petitioners concluded:                       
               With the upward adjustment of Rose’s basis resulting                   
               from the pass through of income from discharge of                      
               indebtedness that is excluded from gross income under                  
               section 108(a), Rose may deduct his share of Zephyr’s                  
               losses up to the amount of his basis, including any                    
               losses that were previously suspended at the corporate                 
               level because of a lack of basis in prior years.                       
          Conversely, respondent contended that Gitlitz v. Commissioner,              
          supra, “does not create a situation in which a taxpayer is                  
          allowed an increase in basis without any proof that a debt has              
          been discharged or the amount thereof.”  Respondent further                 
          contended that “petitioners have offered no proof whatsoever                
          regarding the amount of any debt which was discharged in Zephyr             
          Rock’s Chapter 11 proceeding, seeking instead to rely on the                
          principle established by the Supreme Court in Gitlitz without               
          proving the amount of the purported debt discharged.”  Respondent           
          concluded that “petitioners have failed to present any evidence             
          establishing or to otherwise support a tax basis in excess of the           
          amount which the respondent has agreed to allow.”  In                       
          respondent’s supplemental brief, respondent conceded, however,              






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