The courts have consistently refused to tax COD in the absence
of loan proceeds since the issue was first litigated in 1932. The
leading case is Commissioner v. Rail Joint Co.,70 decided less than
a year after Kirby Lumber. Rail Joint had issued a dividend to its
shareholders in the form of its own bonds and subsequently redeemed
some of the bonds for less than par. The Second Circuit
held that Rail Joint realized no gain because it had received nothing
of value in exchange for the original issuance of the bonds.7 1 In
Aftergood v. Commissioner,71 an accommodation guarantor who
originally received nothing of value for the guarantee and who settled
the resulting liability for less than the full amount owed did
not incur COD income for the amount compromised.7 3 Presumably,
it is the primary obligor who incurs COD income to the extent
of money received, but not repaid.7' In Bradford v. Commis-sioner,75 a taxpayer who gratuitously assumed her husband's liability
of $100,000 was held not to incur COD income when she settled
with the bank for $50,000, because she originally received nothing
of value for her assumption of the debt.76 According to dictum in
Rail Joint, if a taxpayer promises to make a charitable contribution,
and after a change of heart is forced to pay part of the debt
nonetheless, COD income should not be incurred for the cancelled
balance.7
The courts have consistently refused to tax COD in the absenceof loan proceeds since the issue was first litigated in 1932. Theleading case is Commissioner v. Rail Joint Co.,70 decided less thana year after Kirby Lumber. Rail Joint had issued a dividend to itsshareholders in the form of its own bonds and subsequently redeemedsome of the bonds for less than par. The Second Circuitheld that Rail Joint realized no gain because it had received nothingof value in exchange for the original issuance of the bonds.7 1 InAftergood v. Commissioner,71 an accommodation guarantor whooriginally received nothing of value for the guarantee and who settledthe resulting liability for less than the full amount owed didnot incur COD income for the amount compromised.7 3 Presumably,it is the primary obligor who incurs COD income to the extentof money received, but not repaid.7' In Bradford v. Commis-sioner,75 a taxpayer who gratuitously assumed her husband's liabilityof $100,000 was held not to incur COD income when she settledwith the bank for $50,000, because she originally received nothingof value for her assumption of the debt.76 According to dictum inRail Joint, if a taxpayer promises to make a charitable contribution,and after a change of heart is forced to pay part of the debtnonetheless, COD income should not be incurred for the cancelledbalance.7
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