Measuring Insolvency Under Sec. 108

Editor: Michael D. Koppel, CPA/CITP/PFS, MSA, MBA

Bankruptcy & Insolvency

A hot topic for some taxpayers in the past few years has been cancellation of debt (COD) income and how to exclude it from taxable income. Bankruptcy and insolvency are the two main circumstances available for excluding COD income. While determining if a taxpayer is bankrupt is straightforward (the debt is discharged in a Title 11 case), determining whether a taxpayer is insolvent can be tricky.

Sec. 108(a)(1)(B) provides for the exclusion of COD income if the debt discharge occurs when the taxpayer is insolvent. Sec. 108(d)(3) defines insolvency of the taxpayer as the excess of liabilities over the fair market value (FMV) of assets determined immediately before the discharge of debt. The excluded income is limited to the amount by which a taxpayer is insolvent, as stated in Sec. 108(a)(3). For example, if the taxpayer has COD income of $500,000 and the excess of liabilities over assets immediately before the discharge is $450,000, the taxpayer includes $50,000 of COD income in his or her gross income.

Four criteria to determine when calculating insolvency are:

• The taxpayer;
• The measurement date;
• The assets; and
• The liabilities.

The Taxpayer

Identification of the taxpayer in the case of unmarried individuals, C corporations, and S corporations is straightforward. The IRS has issued guidance for identifying the taxpayer for other types of entities and for married couples. Sec. 108(d)(6) provides that Sec. 108 is applied at the partner level; therefore, a partnership is not the taxpayer. Prop. Regs. Sec. 1.108-9 provides that the owner of disregarded entities and grantor trusts is the taxpayer.

Married individuals are considered two taxpayers for purposes of the exclusion. It is important to consult an attorney when one or both spouses have COD income. State law for community property vs. non–community property needs to be considered, along with tax filing status and IRS guidance. The measurement of separately titled and jointly titled assets is discussed later. This is an overview of the types of taxpayers; specific information regarding each type of taxpayer is beyond the scope of this item.

Measurement Date

The taxpayer determines insolvency immediately before the discharge of the debt. This has been interpreted as the day before the date of the discharge (see, e.g., Merkel, 109 T.C. 463 (1997)). In cases of multiple instances of forgiveness of debt, the measurement date is determined separately for each instance, unless the separate instances of discharge are part of a single prearranged plan (Rev. Rul. 92-53).

Assets and Liabilities

The next step requires an examination of the owner/taxpayer’s assets and liabilities. Assets are included at the property’s FMV (not the cost basis). Liabilities consist of all debts of the taxpayer, including the debt being discharged. There has been some debate regarding which assets and liabilities of the taxpayer should go into the insolvency calculation. The IRS provides the following guidelines:

1. Known assets and recourse liabilities: These, which are included in the calculation, include assets and liabilities in the name of the taxpayer and for which he or she is responsible.
2. Protected assets: The Tax Court ruled in Carlson, 116 T.C. 87 (2001), that assets exempt from the claims of creditors in a bankruptcy case—e.g., principal residence, retirement plans, or personal vehicle—must be included in calculating insolvency under Sec. 108(a)(1)(B). Including them, however, may be a benefit to the taxpayer in the current market since the values of many homes are below the amount due on the related debt.
3. Contingent liabilities: The Ninth Circuit ruled in Merkel, 192 F.3d 844 (9th Cir. 1999), that under Sec. 108, a contingent liability is included in the determination of insolvency only if it is shown by a “preponderance of the evidence” that a taxpayer will be called upon to pay the liability. The taxpayer will include the full debt in the calculation or none of it.
4. Nonrecourse debt of partnership: Rev. Rul. 2012-14 said that for purposes of measuring a partner’s insolvency under Sec. 108(d)(3), each partner treats as a liability an amount of the partnership’s discharged excess nonrecourse debt based upon the allocation of COD income to the partner under Sec. 704(b) and its regulations. See Rev. Rul. 92-53, which was amplified by Rev. Rul. 2012-14, for examples of this situation.
5. Nonrecourse debt in regard to any taxpayer: In Rev. Rul. 92-53, the IRS ruled that the amount by which discharged nonrecourse debt exceeds the FMV of the property securing the debt is taken into account when determining whether a taxpayer is insolvent. This occurs at the time the nonrecourse debt generates COD income.
6. Jointly titled assets of married individuals: Field Service Advice 199932019 holds that 100% of the FMV of any assets held in tenancy by the entirety (and 100% of related debt, if any) is included in the measurement of insolvency when one spouse is calculating insolvency for COD income on a debt for which the other (solvent or insolvent) spouse is not liable. This pertains to non–community property states.
7. Separately titled assets of married individuals: As mentioned earlier, each spouse is considered a taxpayer. Letter Ruling 8920019 said that when one spouse has COD income, the separately titled assets of his or her spouse are not included in the insolvency measurement, but (as in No. 6 above) the joint assets of the spouses are included.

Letter Ruling 8920019 is based on Sec. 6013, as applied in Coerver, 36 T.C. 252 (1961), aff’d, 297 F.2d 837 (3d Cir. 1962), in which the Tax Court stated that a joint return under Sec. 6013 “does not create a new tax personality which would be entitled, in its own right, to deductions not otherwise available to the individual spouses under the pertinent sections of the statute.” The letter ruling further states that “the determination of a taxpayer’s entitlement to the insolvency exclusion under section 108(a)(1)(B) is based on all the assets reachable by the individual taxpayer’s creditors.” The filing of a joint return does not affect whether a spouse’s separate assets are used to determine the taxpayer’s insolvency. This pertains to non–community property states.

Conclusion

Measuring insolvency involves many steps and a few twists. Understanding the four parts—taxpayer, measurement date, assets, and liabilities—assists in determining insolvency, which allows taxpayers to determine whether they can appropriately exclude COD income.

EditorNotes

Michael Koppel is with Gray, Gray & Gray LLP in Westwood, Mass.

For additional information about these items, contact Mr. Koppel at 781-407-0300 or mkoppel@gggcpas.com.

Unless otherwise noted, contributors are members of or associated with CPAmerica International.