Equal Treatment for Solvent and Insolvent Taxpayers
The principal reason for the Service to compromise a tax debt is
the taxpayer's inability to pay. The same rationale underlies the
insolvency exception under Code section 108(a) which excludes the
COD income of taxpayers who are insolvent or bankrupt. This similarity
invites comparison of the two relief provisions. Most OIC
agreements are probably made with taxpayers who are insolvent in
the sense that their liabilities exceed the value of their non-exempt
assets both before and after the agreement. However, OIC agreements
can be and often are made with taxpayers who are technically
solvent, as was the case in three of the four reported cases
examined in this article. The Service's reason for compromising a
tax debt despite the taxpayer's solvency is just the same as that of
any other creditor, namely, to make the best possible settlement. If
the taxpayer's assets are for some reason unavailable to satisfy the
debt, they are quite sensibly ignored.
This policy stands in stark contrast with the insolvency exception
codified under Code section 108(a). Bankrupt and insolvent
debtors may exclude COD from income, although at the price of
attribute reduction under Code section 108(b). To the extent the
taxpayer is or becomes solvent as a result of debt forgiveness, the
exclusion provided by Code section 108(a) is inapplicable, and the
COD income must be taxed currently. Creditors may be expected
to strike the best possible compromise, however, which makes it
unlikely that the debtor will have any foreseeable liquidity to pay
tax on the COD.
This suggests that the current rules under Code section 108(a)
are overly stringent. Where creditors have forgiven uncollectible
debts in order to realize the best available settlement, or to facilitate
the rehabilitation of a financially troubled taxpayer, it seems
reasonable to avoid imposing a current tax regardless of whether
the taxpayer is technically solvent. This would be realistic, and
would also remove some difficult obstacles faced by taxpayers contemplating
workouts outside of bankruptcy. If the taxpayer is in
doubt whether it can prove that its liabilities exceed the value of
its assets, which is a difficult and frequently litigated question, the taxpayer has an incentive to resort to formal bankruptcy proceedings
for the sole purpose of avoiding current taxes on COD.219 Once
in bankruptcy, the technical question of solvency becomes irrelevant
because all COD is excludible. This incentive to resort to formal
bankruptcy seems undesirable from a policy point of view if
the creditors can otherwise negotiate a settlement out of court. For
the sake of both simplicity and fairness, it might be better to treat
all cases of inability to pay alike, without regard to technical solvency.
That would entail extending the relief Code section 108(a)
to all such debt cancellations.
Compromising a tax debt should not create COD income because
no loan proceeds are received in exchange for incurrence of tax
debts. Where some part or all of the cancelled debt has been accrued
and deducted, however, the tax benefit rule does appear to
create COD income. Nevertheless, this result must be rejected as
unintended and contrary to the purpose of granting tax relief. The
Service should repudiate Yale Avenue as erroneous so that taxpayers
may enjoy certainty as to the tax consequences of OIC
agreements.