Stephen Bernard Schachner, Jr., and Jill Francis Schachner - Page 5

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                                     Discussion4                                      
               Section 61 generally defines gross income as “all income               
          from whatever source derived”.  Section 61(a)(12) specifically              
          provides that gross income includes income from the discharge of            
          indebtedness.  See also Gitlitz v. Commissioner, 531 U.S. 206,              
          213 (2001); United States v. Kirby Lumber Co., 284 U.S. 1 (1931).           
          Section 108(a)(1) lists several exclusions from this general                
          rule, and petitioners argue that the exclusion in section                   
          108(a)(1)(A) applies because the “loan was discharged in [their]            
          Chapter 13 bankruptcy 4 years ago.”                                         
               Section 108(a)(1)(A) provides that gross income does not               
          include cancellation of indebtedness income if the discharge                
          occurs in a title 11 case.  Title 11 of the United States Code              
          contains the provisions relating to bankruptcy, including the               
          rules related to 11 U.S.C. Chapter 13, Adjustment of Debts of an            
          Individual with Regular Income.  Yet the Apple loan was                     
          specifically not discharged--nor was it dischargeable--in the               
          bankruptcy proceedings.  The loan remained on EduCap’s books                
          until it was written off on April 30, 2003.  Section 108(a)(1)(A)           
          does not apply.5                                                            

               4  The issue for decision is essentially legal in nature;              
          accordingly, we decide it without regard to the burden of proof.            
               5  The other exclusions listed in sec. 108(a)(1) are                   
          inapplicable as well:  Petitioners were not insolvent at the time           
          the debt was discharged, the debt was not qualified farm                    
                                                             (continued...)           





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