This article offers two reasons why an OIC agreement should not
create income. The first reason derives from the principle that
COD income cannot arise unless the debtor received loan proceeds
in the form of money, goods, or services. Because taxpayers ordinarily
do not receive any identifiable proceeds in exchange for incurring
a tax debt, no income can arise upon its forgiveness. This explanation
does not cover all situations, however, because the
taxpayer may have assumed the tax debt as a condition of acquiring
property," or the tax benefit rule may apply to accrued
interest.5
The second reason why OIC relief should not be taxed is that it
would lead to absurd results which neither Congress nor the parties
to the agreement could have intended. The paradoxical effect
of taxing tax relief results from violating a circularity principle.
Application of a rule of tax law is never treated as an item of gain
or loss and then subjected to other tax rules. An OIC agreement
can be viewed as the application of a structural tax rule, just like a discharge by means of a tax statute of limitations. If an OIC agreement
is taxable, the running of a tax statute of limitations should
also produce COD income because there appears to be no principled
way to distinguish the two situations.