Taxpayers who did not establish insolvency must recognize COD income

Taxpayers who settled a credit card debt for $4,412 less than they owed in 2008 had to include that amount in income because they did not prove they were insolvent under Sec. 108(a)(1)(B) at the time of the debt discharge (Shepherd, T.C. Memo. 2012-212).

Sec. 108(a)(1)(B) excludes cancellation of debt (COD) income from gross income if the debt discharge occurs while the taxpayer is insolvent. The taxpayers, Bernard and Desiree Shepherd, claimed to be insolvent in 2008 when the credit card company cancelled their debt. At issue in the case was the fair market value (FMV) at the time of the debt discharge of two pieces of real estate the Shepherds owned: their principal residence and their vacation home. In addition, the parties disagreed whether the value of Bernard Shepherd’s state pension should be included in the taxpayers’ assets when calculating the insolvency.

The valuation of these assets would determine whether the value of taxpayers’ liabilities exceeded the total value of their assets, and therefore whether they were insolvent. If the Tax Court accepted the taxpayers’ valuation of their houses and excluded the pension loan from their liabilities (and the corresponding amount of the balance in the pension from their assets), petitioners would be approximately $32,000 insolvent and therefore would not be required to include the COD income in their income for 2008.

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