- 126 - 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,Page: Previous 116 117 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 Next
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