Gaudiano v. CIR

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2000 FED App. 0196P (6th Cir.)

File Name: 00a0196p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

;



SALVADOR A. GAUDIANO,



et al.,



Petitioners-Appellants,



No. 99-1294



v. >







COMMISSIONER OF INTERNAL

Respondent-Appellee. 

REVENUE,



1

On Appeal from the United States Tax Court.

Nos. 25712-96; 25713-96; 25714-96; 25716-96—

Juan F. Vasquez, Tax Court Judge.

Argued: December 17, 1999

Decided and Filed: June 8, 2000

Before: BOGGS and NORRIS, Circuit Judges; NUGENT,

District Judge.*

*

The Honorable Donald C. Nugent, United States District Judge for

the Northern District of Ohio, sitting by designation.

1

2 Gaudiano, et al. v. Commissioner No. 99-1294 No. 99-1294 Gaudiano, et al. v. Commissioner 23

_________________ testimony of a witness may “simply disregard it,” the

disregarded testimony is usually not considered sufficient

COUNSEL grounds for drawing the opposite conclusion. Bose Corp. v.

Consumers Union of U.S., Inc., 466 U.S. 485, 512, 104 S. Ct.

ARGUED: William C. Myers, Jr., WAGNER, MYERS & 1949, 1966, 80 L. Ed.2d 502 (1984).

SANGER, Knoxville, Tennessee, for Appellants. Teresa E.

McLaughlin, U.S. DEPARTMENT OF JUSTICE, Absent the testimony of the Taxpayers regarding the

APPELLATE SECTION TAX DIVISION, Washington, D.C., alleged lack of consideration, the Guarantees appear on their

for Appellee. ON BRIEF: William C. Myers, Jr., Kathleen faces to be valid and enforceable. Indeed the testimony of the

M. Flynn, WAGNER, MYERS & SANGER, Knoxville, Price Waterhouse auditor was compelling on that point.

Tennessee, for Appellants. Teresa E. McLaughlin, Edward T. Accordingly, we do not find clear error in the Tax Court’s

Perelmuter, U.S. DEPARTMENT OF JUSTICE, finding that the Continuing Guaranty was valid and

APPELLATE SECTION TAX DIVISION, Washington, D.C., enforceable; and therefore, the Asher Taxpayers’ bad debt

for Appellee. deductions were properly disallowed.

_________________ Conclusion

OPINION For the reasons stated herein, the Tax Court’s disallowance

_________________ of all of the deductions in dispute is AFFIRMED.

Specifically, the Taxpayers were not entitled to deduct their

NUGENT, District Judge. The Commissioner of Internal suspended and ordinary losses for tax year 1993 because those

Revenue (hereinafter the “Commissioner”) assessed tax losses were offset at the corporate level by the COD income

deficiencies against Salvador A. and Kathleen M. Gaudiano, realized by Four A. To the extent that COD income remains

Randy C. and Kathleen R. Edgemon, Gary D. Asher, and after exhausting the current and suspended losses of Four A

Larry A. Asher (collectively the “Taxpayers”) for the year (and its shareholders), such COD income passes through to

1993. The Commissioner determined that the Taxpayers had the shareholders and increases their basis in their stock. In

improperly utilized discharge of indebtedness income to addition, the Asher Taxpayers were not entitled to a bad debt

increase their bases in the 1 stock of their Subchapter S deduction because the debt was guaranteed by the valid and

corporation Four A Coal Co. Each Taxpayer then used the enforceable Guarantees of the Four A Taxpayers.

increase in basis to deduct certain losses. The Commissioner

disallowed the deductions. In his answer to the Taxpayers’

petitions in the Tax Court, the Commissioner asserted

increased deficiencies against Taxpayers Gary Asher and

Larry Asher for their pro rata share of a bad debt deduction

taken by their Subchapter S corporation Appolo Fuels, Inc.,

for loans made to Four A Coal Co. After a trial, the United

1

Kathleen M. Gaudiano and Kathleen R. Edgemon were not

shareholders in Four A Coal Co. They are parties to these actions only

because they filed joint tax returns with their husbands.

22 Gaudiano, et al. v. Commissioner No. 99-1294 No. 99-1294 Gaudiano, et al. v. Commissioner 3

by Mr. Gaudiano or Appolo to include the consideration States Tax Court upheld all of the Commissioner’s deficiency

language in the Guarantees; and Mr. McGowan, the Price determinations. The Taxpayers filed this timely appeal.2 We

Waterhouse auditor, “who corroborated the Taxpayers’ exercise jurisdiction pursuant to 26 U.S.C. § 7482(a)(1) and

testimony that Appolo never made promises to the Four A AFFIRM for the reasons stated below.

shareholders regarding future advances or collection

forbearance and that the Guaranties were respectively Procedural and Factual Background

backdated to January 1, 1989, and April 30, 1990, to give the

appearance of enforceability.” Appellant’s Opening Brief at I. Discharge of Indebtedness Income

p. 56. Taxpayers also argue that with Four A hopelessly

insolvent, any threat to foreclose on Four A’s debt by Appolo During 1993, and relevant prior years, Taxpayers Salvador

would have been meaningless. Gaudiano, Gary Asher, Larry Asher, and Randy Edgemon

were each 25% shareholders of Four A Coal Co. (hereinafter

The Commissioner counters that Appolo’s promise to “Four A”), a Kentucky corporation electing to be taxed under

forbear from suit was not meaningless for two reasons. First, Subchapter S of the Internal Revenue Code (26 U.S.C.

Four A possessed sufficient assets to satisfy at least some of §§ 1361 through 1379). Until February of 1991, Four A

its indebtedness to Appolo at the time the Continuing engaged in the business of underground coal mining and

Guaranty was executed. Second, the Guarantees resulted in operated as a contract miner for another Subchapter S

a better financial statement for Appolo, from which the corporation, Appolo Fuels, Inc. (hereinafter “Appolo”).

Ashers could benefit. Taxpayers Gary D. Asher and Larry A. Asher were 24%

shareholders in Appolo.

Moreover, upon review of the record, the non-taxpayer

testimony of Mr. Stites and Mr. McGowan did not do much In January, 1993, Four A filed for protection under

to corroborate the Taxpayers’ testimony. Rather, the Chapter 7 of the Bankruptcy Code and was insolvent within

testimony simply informed the Court that Mr. Stites and Mr. the meaning of 26 U.S.C. § 108(d)(3). As a result of the

McGowan had no idea whether a promise was made or not. bankruptcy, Appolo wrote off as bad debt the loans it had

Indeed, Mr. McGowan testified that he believed that the made to Four A. Thus, Four A realized $1,289,048 in

Guarantees were valid and that he would not have accepted discharge of indebtedness income, also known as cancellation

them if he believed that they were not valid. of debt income (hereinafter “COD” income). While gross

income generally includes income from the discharge of

Considering the Tax Court’s ability to assess the demeanor indebtedness3, §108 (a)(1)(B) provides an exclusion of

of the witnesses and the credibility of the testimony provided discharge of indebtedness income from gross income when

by the witnesses, and the reasons why the Asher Taxpayers the taxpayer is insolvent. Pursuant to 26 U.S.C. § 108

might have had motive to provide the Guarantees, we cannot

find that the Tax Court clearly erred in disregarding the

Taxpayers’ testimony. A trial court’s findings based on 2

determinations regarding the credibility of witnesses are The Taxpayers do not appeal the Tax Court’s determination

regarding the Taxpayers’ claims for refund for their distributive shares of

generally entitled to great deference. See Owens-Illinois, Inc. the increased § 1231 loss claimed by Four A in an amended Form 1120S

v. Aetna Cas. & Sur. Co., 990 F.2d 865, 870 (6th Cir. 1993); which reported the amount realized on the sale of mining equipment as

In re H.J. Scheirich Co., 982 F.2d 945, 949 (6th Cir. 1993). $145,430 instead of $445,000 as previously reported in 1993.

Moreover, while a factfinder who does not believe the

3

See 26 U.S.C. § 61 (a)(12).

4 Gaudiano, et al. v. Commissioner No. 99-1294 No. 99-1294 Gaudiano, et al. v. Commissioner 21

(d)(7)(A), the exclusion is determined at the S corporation promised to forbear suing Four A on Four A’s past debt,

level (not the shareholder level) in cases of discharge of S Appolo never actually made such a promise. The Tax Court

corporation indebtedness. The exclusion applied to Four A’s noted that the only evidence submitted to disprove the

discharge of indebtedness income. Thus, Four A’s discharge existence of Appolo’s promise was “their own self- serving

of indebtedness income was excluded from gross income testimony,” which the Court, citing Tokarski v.

because Four A was insolvent when the debt was discharged. Commissioner, 87 T.C. 74 (1986), declined to accept.

Relying on the pass through and basis adjustment The Asher Taxpayers contend that the Tax Court

provisions applicable to Subchapter S corporations in 26 improperly ignored their evidence demonstrating that the

U.S.C. §§ 1366 and 1367, the Taxpayers increased their Guarantees lacked valid consideration. They maintain that “it

respective bases in the stock of Four A by $322,262, is inconceivable that Four A’s shareholders would have put

representing a 25% share of the discharge of indebtedness their personal assets on the line in exchange for Appolo’s

income4. Each Taxpayer then used the increase in basis to collection forbearance of Appolo’s future advances to Four

deduct suspended losses from prior tax years as well as A.” The Asher Taxpayers assert that Tokarski, and the line of

ordinary losses from 1993 which would not have been cases cited therein, which stand for the proposition that the

deductible without the increase in the shareholders’ bases. court need not accept a petitioner’s self-serving testimony

Upon audit, the Commissioner determined that the Taxpayers when it is uncorroborated and inconsistent with other facts

were not entitled to increase their adjusted bases in the stock and circumstances presented at trial, is distinguishable from

of Four A by their pro rata shares of the excluded discharge the facts in this case.

of indebtedness income. Therefore, the Commissioner denied

the loss deductions claimed by the Taxpayers as a result of the In Tokarski, a taxpayer and his mother testified that a bank

upward basis adjustments and assessed the deficiencies at deposit by the taxpayer was an inheritance from his father, not

issue here. Taxpayers filed Tax Court petitions contesting the income from working. The taxpayer testified that he had

deficiency determinations. never worked and that he received funds to live on from his

uncles. The court found it incredible that the taxpayer, who

II. Disallowance of Appolo Bad Debt Deduction appeared to be a normal, healthy, 32-year old, had never been

productively employed. The court noted that it weighed

Appolo is an S corporation which began as a surface against the taxpayer that he did not offer any corroborative

mining operation but changed to a coal processing and coal testimony from his uncles or offer any explanation for not

sales company by 1988. Taxpayers Larry Asher and Gary doing so. The court also questioned the taxpayer’s proffered

Asher were 24% shareholders of Appolo. Appolo purchased reason for waiting 6 weeks to deposit the money. “Under all

the circumstances,” the court held, “we are not required to

accept the self-serving testimony of petitioner or that of his

4 mother as gospel.” Tokarski, 87 T.C. at 77.

26 U.S.C. § 1366(a)(1) provides that, in determining an S

corporation shareholder’s tax liability, “there shall be taken into account

the shareholder’s pro rata share of the corporation’s– The Taxpayers argue that, unlike the situation in Tokarski,

(A) items of income (including tax-exempt income) . . . the separate the testimony of each Taxpayer was internally consistent with

treatment of which could affect the liability for tax of any shareholder and corroborated by the other Taxpayers’ testimony. They

. . . .”

26 U.S.C. § 1367(a)(1)(A) provides that “the basis of each shareholder’s also point to the testimony of non-taxpayers, Mr. Stites,

stock in an S corporation shall be increased . . . by . . . (A) the items of Appolo’s legal counsel, who testified that he was not directed

income described in subparagraph (A) of section 1366(a)(1).”

20 Gaudiano, et al. v. Commissioner No. 99-1294 No. 99-1294 Gaudiano, et al. v. Commissioner 5

to the shareholders pursuant to §1366 and increase the coal from Four A. Between the years 1988 and 1991, Appolo

shareholder’s basis pursuant to §1367. The shareholder may advanced large sums of money to Four A. Four A ceased

then use his increased basis to deduct any losses that may mining operations in February of 1991. In March, 1991, Price

accumulate in the future. Waterhouse LLP audited Appolo’s 1990 financial statements.

During that audit Price Waterhouse questioned the

In this case Four A realized $1,289,048 in COD income. collectibility of the Four A debt and raised the question of

Each shareholder deducted $309,914 in suspended and whether a bad debt reserve should be established on Appolo’s

ordinary losses. The shareholders’ combined losses books. Appolo, through its chief financial officer Taxpayer

($1,239,656) are completely offset by the $1,289,048 in COD Salvadore Gaudiano, asserted that the debt was collectible

income. Accordingly, the losses were not available to the and presented a repayment plan developed by the Four A

Taxpayers to use as deductions on their 1993 returns and9 the shareholders to repay the debt to Appolo over eight years

Tax Court’s disallowance of the deductions is affirmed. from equipment rental fees, the residual value of the Four A

mining equipment, and Taxpayer loans to Four A.

II. Bad Debt Deduction

Price Waterhouse reviewed the repayment plan and

The Tax Court held that Appolo was not entitled to a bad determined that the loans should have some sort of personal

debt deduction under § 166 for amounts advanced to Four A guarantee of the shareholders. Mr. Gaudiano and Price

because the debt was guaranteed by Four A’s shareholders Waterhouse agreed that the Four A Taxpayers would execute

and the Guarantees were enforceable under Kentucky law. guarantees to Appolo for the Four A debt and that Appolo

The Taxpayers contend that the Guarantees were invalid and would not be required to establish a reserve against the Four

unenforceable due to lack of consideration. The question of A debt. On or about May 13, 1991, the Taxpayers executed

whether a contract lacks consideration is a fact question, two guaranty agreements (collectively, the Guarantees). The

subject to review for clear error. See Prichard v. Bank first guaranty, which is titled “Continuing Guaranty”, was

Josephine, 723 S.W.2d 883, 886 (Ky. Ct. App. 1987); Roach backdated to January of 1989. The Continuing Guaranty

v. United States, 106 F.3d 720, 723 (6th Cir. 1997). provides in relevant part:

The Tax Court found that the first guaranty, the [Appolo] has from time to time loaned money to Four A

“Continuing Guaranty,” stated that Appolo promised to on a demand basis, some of which loans remain

forbear suing Four A on Four A’s past debt; thus, the outstanding . . . . [T]he guarantors desire to grant this

Continuing Guaranty was supported by adequate and Guaranty to Appolo as consideration for Appolo not

sufficient consideration and is enforceable. Further, the Court demanding immediate payment of its existing loans to

found that the Four A shareholders were financially capable Four A, and as an inducement to Appolo to make future

of satisfying the Guarantees. The Asher Taxpayers argued advances to Four A, without which Guaranty Appolo

that while the Continuing Guaranty recites that Appolo would not take such action; . . . Therefore, . . . in

exchange for good and valuable consideration, the receipt

and sufficiency of which all the Guarantors hereby

9 acknowledge, the Guarantors do hereby absolutely,

Because the Taxpayers’ losses were less than the amount of COD

income realized by Four A, each taxpayer is entitled to increase the basis unconditionally and irrevocably guaranty to Appolo . . .

of their stock by their share of the excess COD income. Since Four A is [t]he repayment in full (without interest) of all loans and

no longer operating, however, it is unlikely that the corporation will incur advances made by Appolo to Four A, including both

future losses.

6 Gaudiano, et al. v. Commissioner No. 99-1294 No. 99-1294 Gaudiano, et al. v. Commissioner 19

those currently outstanding and those made in the future. shareholder losses) would never occur since there would be

... no income left at the corporate level to apply against the

losses. While § 108(b)(4)(A) provides that the reduction in

(Joint Ex. 19-s, JA 356-58). The Continuing Guaranty further attributes shall be made after the determination of the tax

states: “Each of the Guarantors expressly agrees that neither imposed by this chapter for the taxable year of the discharge,

the bankruptcy, insolvancy [sic], reorganization, liquidation, it does not preclude the reduction of certain attributes in the

dissolution, death or disability of any or all of Four A and the year of discharge. Specifically, § 108(b)(4)(B) provides that

other Guarantors shall diminish, impair, discharge or release, reductions of net operating loss for the taxable year of

or otherwise affect, the obligations and liability of the discharge and any net operating loss carryover and any capital

Guarantor under this Guaranty. . . .” Id. at JA 357. loss carryover shall be made “first in the loss for the taxable

year of discharge.” Thus, the corporation must determine its

The second Guaranty, backdated to April 30, 1990, net operating losses and suspended operating losses for the

guarantees two loans from Appolo to Four A in the amounts year of discharge and reduce those attributes by the amount of

of $500,000 and $170,000. The Guaranty states that “the COD income realized. If the losses exceed the COD income,

Guarantors have previously agreed to guarantee the First Note then the extra losses pass through to the shareholders.

and the Guarantors desire to guarantee the Second Note as an

inducement to Appolo to make the loan evidenced thereby, We disagree with the Tax Court and the Tenth Circuit in

without which guarantee Appolo would not take such action”. their findings that COD income is not income within the

(Joint Ex. 20-t, JA 359). As in the Continuing Guaranty, the meaning of § 1366(a)(1)(A) and thus does not pass through to

second Guaranty asserts that the Guaranty is provided in the shareholders and increase the basis of their shares.

exchange for “good and valuable consideration, the receipt Section 1366 (a)(1)(A) explicitly includes tax-exempt income.

and sufficiency of which all the Guarantors hereby The Tax Court and the Tenth Circuit have determined that

acknowledge” and that “neither the bankruptcy, insolvancy COD income is not really tax-exempt since COD income

[sic], reorganization, liquidation, dissolution, death or reduces suspended losses and thus operates to defer rather

disability of any or all of Four A and the other Guarantors than eliminate taxes. However, as Judge Posner explained in

shall diminish, impair, discharge or release, or otherwise Witzel, COD income is not always tax deferred; it may be

affect, the obligations and liability of the Guarantor under this truly tax exempt if there are no suspended losses to offset the

Guaranty”. Id. at JA 360. income. Moreover, § 1366 is not “limited to tax-exempt

income, so if COD income is not ‘really’ tax exempt this

Four A filed a petition for relief under Chapter 7 of the would not take it out of the section.” Witzel, 200 F.3d at 505.

Bankruptcy Code in December, 1993. At the time of its

bankruptcy filing, Four A owed $1,106,000 to Appolo. Since COD income falls within § 1366(a)(1)(A), it follows

Appolo determined that the Four A debt was “worthless” and that pursuant to § 1367(a)(1)(A), COD income increases the

deducted the $1,106,000 Four A debt as a business bad debt basis of the S corporation shareholder’s stock by the amount

pursuant to 26 U.S.C. §166 (a) on its 1993 Form 1120S, U.S. of COD income passed through to the shareholder.

Income Tax Return for an S Corporation. Appolo never Consequently, we hold that the S corporation must reduce any

demanded payment from Four A or any of its shareholders. existing tax attributes, including shareholder suspended

Taxpayers Larry Asher and Gary Asher, as Appolo losses, by the amount of COD income realized by the S

shareholders, each reported an ordinary loss of $80,246 on corporation. If any COD income remains after losses and

suspended losses are deducted, that income may flow through

18 Gaudiano, et al. v. Commissioner No. 99-1294 No. 99-1294 Gaudiano, et al. v. Commissioner 7

§108(d)(7)(A), tax attributes [sic] reductions must be their individual 1993 tax returns based on their distributive

applied at the corporate level with subchapter S shares of Appolo’s bad debt write-off.

corporations. Taxpayers’ proposal would not give effect

to the attribute reduction scheme. Taxpayers’ approach, The Commissioner did not disallow the loss deductions

in fact, would thwart the purpose of the net operating loss claimed by the Ashers upon audit. Rather, in his answer in

tax attribute. . . . As we see it, §108(b)(4)(A) is simply the Larry Asher case, and in an amendment to his answer in

designed to compute certain tax applications ... before the Gary Asher case, the Commissioner asserted that Appolo

reducing tax attributes. We do not read the statute as was not entitled to a bad debt deduction for the amounts owed

mandating that attribute reductions be made in the tax by Four A because those debts were not worthless in 1993 in

year following the year of the discharge. We concede that the debts were guaranteed by the Four A shareholders

that, if §108(b)(4)(A) is read narrowly and in isolation, it who were financially able to make full payment on Four A’s

is plausible to conclude Congress intended tax attributes debts to Appolo. Consequently, the Commissioner requested

to be reduced only in the tax year following the taxable that the Tax Court determine that the Ashers were liable for

year of the discharge. But we must read the Internal increased deficiencies for 1993.

Revenue Code as a whole. . . . Taxpayers’ interpretation

of §108(b)(4)(A) would negate the effect of the tax The Ashers opposed the Commissioner’s requests for

attribution scheme and would give taxpayers an increased deficiencies, contending that the Guarantees were

unwarranted windfall. not given in exchange for consideration, and thus, were not

enforceable under Kentucky law. During a brief trial before

Gitlitz, 182 F.3d at 1149. In Witzel, without specifically the Tax Court, the Taxpayers offered testimony that they were

addressing the ordering requirements of § 108(b)(4)(A), the told the Guarantees were for the auditors and that Appolo

Seventh Circuit determined that the tax attributes must be never demanded that the Guarantees be executed. Further, the

reduced before COD income passes through: “if (b)[§108(b)] Taxpayers testified that it was understood by Appolo and the

is to be applied at the corporate level, the implication . . . is Taxpayers that Appolo did not require and would never

that the excluded income must be set off against the enforce the Guarantees; the Guarantees were executed solely

suspended losses and the latter reduced accordingly. The to appease the Price Waterhouse auditor. The Taxpayers

argument is not conclusive; the interpretive question could be asserted that the Guarantees were given to the auditor and that

resolved either way; but in these circumstances of dubiety the no copies were kept by the Taxpayers or Appolo. Moreover,

sensible result--denying the taxpayers the double windfall-- the Taxpayers contended that the consideration language in

seems to us the preferable one.” Witzel, 200 F.3d at 503-04. the Guarantees was merely form language added by Appolo’s

legal counsel John Stites which Appolo had not requested.

While this is a very close call, we feel inclined to follow the Finally, the Taxpayers testified that Appolo had never

reasoning of the Tenth and Seventh Circuits on the ordering promised to forbear from suing Four A on Four A’s past debt.

issue. Section 108 (d)(7)(A) clearly requires that the

insolvency determination and the attribute reduction take The Tax Court held that Appolo was not entitled to a bad

place at the corporate level. If the attribute reduction is made debt deduction for the amounts loaned to Four A; and thus,

after the COD income passes through then there will be no the Ashers were not entitled to the ordinary losses they

attribute reduction at the corporate level. As the claimed as their distributive share of Appolo’s deduction.

Commissioner notes, the mandated reduction of the The Tax Court’s decision was based on its observation that

corporation’s net operating losses (which include suspended the Guarantees appeared valid and enforceable on their faces.

8 Gaudiano, et al. v. Commissioner No. 99-1294 No. 99-1294 Gaudiano, et al. v. Commissioner 17

The Tax Court focused on the first Continuing Guaranty, excluded from gross income under § 108(a)(1)(B) shall not

which stated on its face that consideration was given to the exceed the amount by which the taxpayer is insolvent.

Four A shareholders in that Appolo promised not to demand § 108(a)(3). Further, the amount of COD income excluded

immediate payment on past loans to Four A and to make under § 108(a)(1)(B) shall be applied to reduce the tax

future loans to Four A. Noting that forbearance to sue is attributes of the taxpayer in the order listed in § 108(b)(2)

sufficient consideration to support a promise, the Tax Court [Net operating loss, general business credit, minimum tax

found that the first Guaranty was supported by sufficient credit, capital loss carryovers, basis reduction, Passive activity

consideration and held that the Guaranty was valid and loss and credit carryovers, and foreign tax credit carryovers].

enforceable. In making this finding the Tax Court did not § 108(b)(1). Section 108(b)(4) provides that the reductions

accept the self-serving testimony of the Taxpayers offered to described in § 108(b)(2) shall be made after the determination

prove that Appolo did not give consideration for the of the tax imposed by this chapter for the taxable year of the

Guarantees. The Tax Court also found that the Taxpayers discharge. Section 108(d)(7) contains special rules for S

were financially able, both in 1993 and at the time of the trial, corporations. Section 108(d)(7)(A) provides that in the case

to satisfy Four A’s debts to Appolo. Consequently, the Tax of an S corporation, subsections (a) [exclusion of COD

Court concluded that since the first Continuing Guaranty is income if taxpayer is insolvent or is in Title 11], (b)

enforceable, the debt was not worthless, regardless of whether [reduction of tax attributes] and (g) [qualified farm

the second Guaranty is enforceable. indebtedness] shall be applied at the corporate level.

Analysis As the Tenth Circuit recognized in Gitlitz, the timing of the

attribute reduction brings § 108(b)(4)(A) into conflict with

I. Pass Through Issue § 108(d)(7)(A). Under the Taxpayers’ position, excluded

COD income does not reduce S corporation losses as required

The initial issue in this case raises a question of first by § 108(b)’s attribute reduction requirement if the reduction

impression in this Circuit. Whether the Taxpayers, as the is made in the year following the year of discharge. Rather,

shareholders of Four A, an S corporation, are entitled to current and suspended losses are deducted by the shareholders

increase their bases in the stock of Four A by their pro rata by virtue of their increased basis, thus offsetting other income

share of discharge of indebtedness income (“COD income”) the shareholders may have. In practice, there would be no

realized by Four A, but excluded by Four A pursuant to 26 income left to offset any tax attributes at the corporate level

U.S.C. §108(a)? in the year following discharge.

There are no facts in dispute, thus the Tax Court’s decision The Commissioner argues that § 108(b)(4)(A) does not

on this legal issue is a question of law that is reviewed de require that the reduction of tax attributes be made in the year

novo. Estate of Mueller v. Commissioner, 153 F.3d 302, 304 following the year of discharge. See § 108(b)(4)(B)

(6th Cir. 1998). (reductions under § 108(b)(2)(A) & (D)[net operating loss and

capital loss carryover] shall be made first in the loss for the

A. The Tax Court Decision taxable year of the discharge.) Faced with the same

argument from the taxpayers in Gitlitz, the Tenth Circuit held:

The Tax Court held that the COD income that Four A

excluded from gross income under § 108 (a) is not a Although a close question, we ultimately conclude the

separately stated item of tax-exempt income for purposes of taxpayers’ theory is not compelling. According to

§ 1366 (a)(1)(A). Therefore, Taxpayers were not entitled to

16 Gaudiano, et al. v. Commissioner No. 99-1294 No. 99-1294 Gaudiano, et al. v. Commissioner 9

losses were completely offset by the amount of the COD increase their bases in the Four A stock due to Four A’s COD

income), the increased basis may enable the taxpayer to income. In reaching this decision, the Tax Court relied, with

deduct future losses.8 Id. at 505. little discussion, on its reviewed decision in Nelson v.

Commissioner, 110 T.C. 114 (1998), aff’d, 182 F.3d 1152

C. The Parties’ Arguments (10th Cir. 1999).

The parties in this case raise the same arguments made by In Nelson, the Tax Court held that a taxpayer was not

the parties in Gitlitz, Farley, Witzel, and Hogue. The entitled to increase the basis in his S corporation stock by his

Commissioner argues that the only reasonable interpretation pro rata share of the insolvent corporations’s COD income.

of § 108 is that COD income is recognized only at the The Nelson court set out the arguments as follows:

corporate level, does not pass through to the shareholder, does

not raise the shareholder’s basis and instead eliminates The parties’ dispute herein centers on the language in

suspended losses at the corporate level. Taxpayers argue that section 108 (d)(7)(A). Specifically, the parties differ on

§ 108(d)(7)(A)-(C) does not override or vary the general S the precise meaning of the phrase, “in the case of an S

corporation pass through and basis provisions set forth in corporation, * * * [section 108] shall be applied at the

§§ 1366 and 1367, nor does § 108(d)(7)(A) preclude pass corporate level.” Sec. 108(d)(7)(A). [The

through of COD income under § 1366(a)(1)(A). Commissioner] argues that section 108(d)(7)(A)

represents an adjustment and/or exception to the

As the conflicting decisions of the other courts which have principles underlying the subchapter provisions that

analyzed this issue demonstrate, interpreting the Internal items of income realized or recognized at the corporate

Revenue Code is about as easy as swimming through mud. level are passed through to the shareholders. On the

The sections at issue, 108, 1366, and 1367, while seemingly other hand, [Taxpayer] contends that section

clear on their faces, become muddy when they are applied in 108(d)(7)(A) stands for the proposition that prior to the

conjunction with each other. determination of an individual shareholder’s income tax

liability, the S corporation must be ascertained to be

The analysis begins with § 108(a)(1)(B) which provides insolvent.

that gross income does not include any amount which would

be includible in gross income by reason of the discharge of [The Taxpayer], in effect, argues that the result of the

indebtedness of the taxpayer if the discharge occurs when the interaction between section 108(d)(7)(B) and (b)(2), as

taxpayer is insolvent. In this case the parties agree that Four governed by section 108(b)(4), is to apply the attribute

A was insolvent at the time that its debt to Appolo reduction rules of section 108(b)(2) at the shareholder

(approximately $2 million) was discharged. The amount level. Section 108(b)(4) states that the reduction in tax

attributes will be made “after the determination of the tax

imposed * * * for the taxable year of the discharge.”

8

(Emphasis added.) Next, [Taxpayer] points out that

Presumably, the shareholder’s basis in his S corporation stock “suspended losses” under section 1366(d)(i)-(3) are

would only increase by the amount of the COD income which was not deemed to be net operating losses. Sec. 108(b)(2). Such

offset by the existing suspended losses. Thus, the S corporation had $5.4 “suspended losses” are determined at the shareholder

million in excluded COD income which was offset by approximately $3

million in existing suspended losses leaving approximately $2.4 million level. Sec. 1366(d)(1). Consequently, [Taxpayer]

in COD income to pass through to the shareholder to increase the extrapolates that the reduction in tax attributes occurs on

shareholder’s basis.

10 Gaudiano, et al. v. Commissioner No. 99-1294 No. 99-1294 Gaudiano, et al. v. Commissioner 15

the shareholder level. Similarly, [Taxpayer] reasons that section 108(d)(7)(A) requires that COD income of a

COD income excluded under section 108(a)(1) passes subchapter S corporation be offset against any existing

through to the shareholder, increases his or her stock suspended losses arising from the operation of the

basis, and thus affects his or her “suspended losses” corporation.” Id. at 506. Thus, the taxpayer in Witzel was

under section 1366(d). According to [Taxpayer], all of forbidden to deduct his existing suspended losses because

this occurs at the shareholder level, prior to the reduction they were offset at the corporate level by the amount of his

in tax attributes under section 108(b)(2). corporation’s COD income.6 The Seventh Circuit noted that

resolving the interpretive question in this way, which denies

Accordingly, in order for [Taxpayer] to prevail in this the taxpayers the double windfall, seemed to be preferable.

matter, the COD income otherwise excluded from gross Id. at 504. While Judge Posner did not specifically address

income must pass through the corporate form and be the timing of the attribute reduction as set forth in §108(b)(4),

apportioned on a pro rata basis among the subchapter his holding indicates that he sided with the Gitlitz Court in

shareholders. We disagree with [Taxpayer]’s statutory finding that attribute reduction precedes pass through.

approach with respect to the COD income exclusion

provision because it is simply not plausible. In this However, in contrast to Gitlitz, Judge Posner determined

instance, section 108(d)(7)(A) explicitly provides that the that COD income passes through to the shareholder pursuant

COD income exclusion operates, for purposes of the to § 1366(a)(1)(A), which explicitly includes tax exempt

subchapter S regime, on the corporate level. income, and increases the basis of the shareholder’s stock

pursuant to § 1367. The Court was unpersuaded by the Tax

Nelson, 110 T.C. at 120-21. The court held that the literal Court’s conclusion that COD income is merely tax deferred,

language of §108(d)(7)(A) provides that the reduction in tax not really tax exempt, noting that there could be occasions

attributes applies at the corporate level. Id. at 121. Further, when COD income is truly tax exempt as opposed to merely

§ 1366(b) provides that the character of any item included tax deferred. In any event, Judge Posner noted that § 1366 is

under § 1366(a)(1)(A) is determined as if realized directly not limited to tax-exempt income, so even if COD income7

from the source from which realized by the corporation, or really was not tax exempt it would not take it out of § 1366.

incurred in the same manner as incurred by the corporation. Thus, while the taxpayer cannot use his increased basis to

Thus, the court determined that construing § 1366(a)(1)(A) in deduct existing suspended losses (because in Witzel those

combination with § 108(d)(7)(A) meant that COD income

was precluded from recognition at the shareholder level and

could not, therefore, increase the shareholder’s basis. Id. at 6

Mr. Witzel was the sole shareholder of an S corporation with $5.4

122. million of COD income and suspended losses of almost $3 million.

In addition, the Tax Court held that § 108(b)(4)(A), which 7

The court noted a recent Treasury Regulation which supports the

states that the reduction of tax attributes occurs after the Commissioner’s and the Tax Court’s interpretation of § 1366, but

determination of the tax imposed for the taxable year of the declined to follow the regulation since it is only applicable to tax years

discharge, requires the S corporation to reduce its tax beginning on or after August 18, 1998. The regulation states “‘Tax-

attributes by the amount excluded from gross income at the exempt income’ does not include income from discharge of indebtedness

end of the corporation’s taxable year. Id. at 123. The court excluded from income under section 108 because such income is not

permanently excludible from income in all circumstances in which section

rejected taxpayer’s argument that the income was “tax 108 applies.” Treas. Reg. §1.1366-1(a)(2)(viii), 64 Fed. Reg. 71641,

exempt” and thus statutorily required to pass through to S 71643 (Dec. 22, 1999). Similarly, this regulation does not apply here

because the tax year at issue is 1993.

14 Gaudiano, et al. v. Commissioner No. 99-1294 No. 99-1294 Gaudiano, et al. v. Commissioner 11

S corporation shareholders. The court determined that once corporation shareholders under § 1366(a)(1)(A). Instead, the

COD income is excluded from gross income pursuant to court noted that the exclusion could be subject to taxation in

§ 108(a)(1), it is treated as tax-exempt income pursuant to the future, and therefore was not necessarily tax exempt on a

§ 1366(a)(1) and is passed through to S corporation permanent basis. Id. at 125. After reviewing the “relatively

shareholders under that section. Pursuant to § 108(b)(2), the sparse legislative history,” the court also observed that

amount of COD income excluded from gross income is allowing taxpayer to increase his basis by using income for

applied to reduce tax attributes. That reduction of tax which the creditors, not taxpayer, had borne an economic cost

attributes is made after the determination of the tax imposed would produce an unintended windfall for taxpayer. Id. at

by this chapter for the taxable year of the discharge. 127-28.

§ 108(b)(4)(A). Thus, the court concluded that COD income

passes through to S corporation shareholders in the year that B. Decisions of other courts on the COD pass through

the debt is discharged and the tax attributes are decreased in issue.

the year following the discharge because the determination of

the tax imposed for the tax year in which the discharge In July 1999, the Tenth Circuit, the first circuit to rule on

occurred cannot take place until that tax year ends. Id. at *2- this issue, affirmed the Nelson decision for the reasons stated

3. As a result, the S corporation shareholders in Hogue were in Gitlitz v. Commissioner of Internal Revenue, 182 F.3d 1143

allowed to increase shareholder basis in the year of the (10th Cir. 1999). The Tenth Circuit determined that:

discharge and claim suspended losses against the increased

basis. The attribute reduction mandated by § 108(b)(2) would The outcome of this case is ultimately determined by the

occur in the year following the year of discharge. The court, timing of the pass-through. If the attribute reduction

noting that the Tenth Circuit’s decision in Gitlitz was driven procedures precede the pass-through, the corporation’s

by the court’s desire to avoid allowing the taxpayers to realize excluded discharge of indebtedness income is absorbed

a windfall, stated that “[t]he Internal Revenue Code is too before it can pass through to shareholders and compel

complicated for courts to strain against the language in an basis adjustments. Potential windfalls are thus avoided.

effort to achieve particular results.” Id. at *3. If, on the other hand, attribute reduction takes place after

the pass-through, the taxpayers’ theory must prevail.

Chief Judge Posner, writing for the Seventh Circuit,

addressed this issue in Witzel v. Commissioner of Internal Id. at 1148. The court concluded that attribute reduction must

Revenue, 200 F.3d 496 (7th Cir. 2000), and settled on a result precede the pass through. In reaching this conclusion the

somewhere in the middle between the Tenth Circuit’s position court reviewed § 108(d)(7)(B) which provides that, in

in Gitlitz and the positions of the Third Circuit in Farley and administering the tax attribute reduction scheme, shareholder

the District Court of Oregon in Hogue. The Seventh Circuit losses suspended pursuant to § 1366(d)(1) must be treated as

noted that while the “at the corporate level” language of net operating losses for purposes of § 108(b)(2)(A), “thereby

§108(d)(7)(A) was not susceptible to conclusive precluding subchapter S corporation shareholders with

interpretation, “[i]f (b) [the subsection that reduces tax carryover losses from enjoying the tax benefits of ordinary

attributes by the amount of the excluded COD income] is to losses while simultaneously avoiding taxation on discharge of

be applied at the corporate level, the implication, as the indebtedness income.” Id. The Court interpreted

government argues, is that the excluded income must be set § 108(d)(7)(B) as requiring that shareholder suspended losses

off against the suspended losses and the latter reduced be added to the corporation’s annual net operating losses in

accordingly.” Id. at 503-04. Thus, the Court held “that applying the net operating loss tax attribute reduction. The

court conceded that since a subchapter S corporation’s losses

12 Gaudiano, et al. v. Commissioner No. 99-1294 No. 99-1294 Gaudiano, et al. v. Commissioner 13

are normally deductible only by its shareholders, the the basis of their stock, the taxpayers were able to deduct

corporation itself is not permitted to take a net operating loss previously suspended losses. The Court noted that the key to

deduction. However, the court noted, “nothing in the Internal unraveling the case was determining how sections 1366,

Revenue Code mandates that corporate net operating losses 1367, and 108 interact. As in Gitlitz, the Third Circuit noted

pass through immediately to shareholders. If pass through that the timing of the pass through, which is controlled by

was immediate, “shareholders could secure a windfall by (1) § 108(b)(4)(A), determines the outcome of the case. Unlike

avoiding tax on corporate discharge of indebtedness income the Tenth Circuit in Gitlitz, the Third Circuit held that:

under § 108(a), and (2) employing the corporation’s passed-

through net operating losses to reduce their own non- “[t]he language in section 108(b)(4)(A) clearly indicates

corporate related gross income without having first decreased that tax attributes are reduced on the first day of the tax

the net operating losses by the amount of the corporation’s year following the year of the discharge of indebtedness.

discharged debt.” Id. The statutory language is straight forward. Discharge of

indebtedness income, considered income under section

The Tenth Circuit concluded that “when § 108(a)’s 61(a)(12), is excluded from gross income pursuant to

discharge of indebtedness income exclusion is triggered, a section 108(a)(1)(B) if, as in this case, the S corporation

shareholder’s pro rata share of the corporation’s net operating is insolvent. This solvency determination is made at the

losses passes through to him only to the extent such losses are corporate level rather than the individual shareholder

not absorbed by the shareholder’s pro rata share of the level pursuant to section 108(d)(7)(A). Discharge of

excluded canceled debt.” Id. Further, should any debt indebtedness income excluded from gross income under

discharge amount remain after the tax attributes are reduced, section 108(a)(1)(B) then passes through to the S

it is disregarded and has no tax5 consequences; it does not corporation’s shareholders pursuant to section

increase the shareholder’s basis. 1366(a)(1)(A). Upon passing through to the S

corporation’s shareholders, the discharge of indebtedness

Two other circuit courts and one district court have also income causes an upward adjustment in the basis of the

recently addressed this issue and have come to different shareholder’ S corporation stock pursuant to section

conclusions. In United States v. Farley, No. 99-3209, 2000 1367(a)(1)(A), thus allowing deductions for losses

WL 72087 (3rd Cir. Jan. 27, 2000), the taxpayers obtained previously suspended because the corporation’s stock

refunds after adjusting the basis of their S corporation stock lacked adequate basis. Finally, the tax attribute reduction

upward to account for excluded COD income. By increasing required by section 108(b) takes place on the first day of

the tax year following the year of the discharge of

indebtedness, as mandated by section 108(b)(4)(A).

5

The Tenth Circuit set out examples which show how their

interpretation of the interplay between §§ 108 and 1366-1368 operates in Farley, 2000 WL 72087 at *8. Accordingly, the Third Circuit

practice. The steps which need to be taken in each calculation are: 1) determined that the taxpayers in Farley were entitled not only

corporation computes its COD income and sets this figure aside to increase the basis of their S corporation stock but also to

temporarily; 2) corporation calculates its net operating loss tax attribute take deductions for their current and suspended losses. Id.

(net operating loss + shareholder suspended losses); 3) corporation

applies the excluded COD income to reduce its tax attributes. After these Similarly, in Hogue v. United States, No. 99-302-KI, 2000

calculations are complete, if any COD income remains it is ignored and

has no tax consequences. If any net operating losses or suspended losses WL 2651 (D. Or. Jan. 3, 2000), the court noted that § 108 is

remain, they flow through to the shareholder and, depending on his basis, silent with respect to whether COD income passes through to

may be used by him to offset his own gross income. 182 F.3d at 1150 n.6.