Bankruptcy Forms: Filing Bankruptcy Chapter 7 Bankruptcy Software Chapter 13

The Center For Debt Management
Center4DebtManagement.com ... Always open 24 / 7

Note: For affordable legal assistance The Center For Debt Management highly recommends Standard Legal's Do-It-Yourself Bankruptcy Forms Software Kits. For credit repair services,
the most trusted law firm in America with over 15 years of experience is Lexington Law Firm.

For more bankruptcy help and bankruptcy alternatives, go to Bankruptcy Resources



TITLE 11–BANKRUPTCY

CHAPTER 3–CASE ADMINISTRATION

Sub Chapter III –Administration

Sec. 346. Special tax provisions

    (a) Except to the extent otherwise provided in this section, 
subsections (b), (c), (d), (e), (g), (h), (i), and (j) of this section 
apply notwithstanding any State or local law imposing a tax, but subject 
to the Internal Revenue Code of 1986.
    (b)(1) In a case under chapter 7, 12, or 11 of this title concerning 
an individual, any income of the estate may be taxed under a State or 
local law imposing a tax on or measured by income only to the estate, 
and may not be taxed to such individual. Except as provided in section 
728 of this title, if such individual is a partner in a partnership, any 
gain or loss resulting from a distribution of property from such 
partnership, or any distributive share of income, gain, loss, deduction, 
or credit of such individual that is distributed, or considered 
distributed, from such partnership, after the commencement of the case 
is gain, loss, income, deduction, or credit, as the case may be, of the 
estate.
    (2) Except as otherwise provided in this section and in section 728 
of this title, any income of the estate in such a case, and any State or 
local tax on or measured by such income, shall be computed in the same 
manner as the income and the tax of an estate.
    (3) The estate in such a case shall use the same accounting method 
as the debtor used immediately before the commencement of the case.
    (c)(1) The commencement of a case under this title concerning a 
corporation or a partnership does not effect a change in the status of 
such corporation or partnership for the purposes of any State or local 
law imposing a tax on or measured by income. Except as otherwise 
provided in this section and in section 728 of this title, any income of 
the estate in such case may be taxed only as though such case had not 
been commenced.
    (2) In such a case, except as provided in section 728 of this title, 
the trustee shall make any tax return otherwise required by State or 
local law to be filed by or on behalf of such corporation or partnership 
in the same manner and form as such corporation or partnership, as the 
case may be, is required to make such return.
    (d) In a case under chapter 13 of this title, any income of the 
estate or the debtor may be taxed under a State or local law imposing a 
tax on or measured by income only to the debtor, and may not be taxed to 
the estate.
    (e) A claim allowed under section 502(f) or 503 of this title, other 
than a claim for a tax that is not otherwise deductible or a capital 
expenditure that is not otherwise deductible, is deductible by the 
entity to which income of the estate is taxed unless such claim was 
deducted by another entity, and a deduction for such a claim is deemed 
to be a deduction attributable to a business.
    (f) The trustee shall withhold from any payment of claims for wages, 
salaries, commissions, dividends, interest, or other payments, or 
collect, any amount required to be withheld or collected under 
applicable State or local tax law, and shall pay such withheld or 
collected amount to the appropriate governmental unit at the time and in 
the manner required by such tax law, and with the same priority as the 
claim from which such amount was withheld was paid.
    (g)(1) Neither gain nor loss shall be recognized on a transfer--
        (A) by operation of law, of property to the estate;
        (B) other than a sale, of property from the estate to the 
    debtor; or
        (C) in a case under chapter 11 or 12 of this title concerning a 
    corporation, of property from the estate to a corporation that is an 
    affiliate participating in a joint plan with the debtor, or that is 
    a successor to the debtor under the plan, except that gain or loss 
    may be recognized to the same extent that such transfer results in 
    the recognition of gain or loss under section 371 \1\ of the 
    Internal Revenue Code of 1986.
---------------------------------------------------------------------------
    \1\ See References in Text note below.

    (2) The transferee of a transfer of a kind specified in this 
subsection shall take the property transferred with the same character, 
and with the transferor's basis, as adjusted under subsection (j)(5) of 
this section, and holding period.
    (h) Notwithstanding sections 728(a) and 1146(a) of this title, for 
the purpose of determining the number of taxable periods during which 
the debtor or the estate may use a loss carryover or a loss carryback, 
the taxable period of the debtor during which the case is commenced is 
deemed not to have been terminated by such commencement.
    (i)(1) In a case under chapter 7, 12, or 11 of this title concerning 
an individual, the estate shall succeed to the debtor's tax attributes, 
including--
        (A) any investment credit carryover;
        (B) any recovery exclusion;
        (C) any loss carryover;
        (D) any foreign tax credit carryover;
        (E) any capital loss carryover; and
        (F) any claim of right.

    (2) After such a case is closed or dismissed, the debtor shall 
succeed to any tax attribute to which the estate succeeded under 
paragraph (1) of this subsection but that was not utilized by the 
estate. The debtor may utilize such tax attributes as though any 
applicable time limitations on such utilization by the debtor were 
suspended during the time during which the case was pending.
    (3) In such a case, the estate may carry back any loss of the estate 
to a taxable period of the debtor that ended before the order for relief 
under such chapter the same as the debtor could have carried back such 
loss had the debtor incurred such loss and the case under this title had 
not been commenced, but the debtor may not carry back any loss of the 
debtor from a taxable period that ends after such order to any taxable 
period of the debtor that ended before such order until after the case 
is closed.
    (j)(1) Except as otherwise provided in this subsection, income is 
not realized by the estate, the debtor, or a successor to the debtor by 
reason of forgiveness or discharge of indebtedness in a case under this 
title.
    (2) For the purposes of any State or local law imposing a tax on or 
measured by income, a deduction with respect to a liability may not be 
allowed for any taxable period during or after which such liability is 
forgiven or discharged under this title. In this paragraph, ``a 
deduction with respect to a liability'' includes a capital loss incurred 
on the disposition of a capital asset with respect to a liability that 
was incurred in connection with the acquisition of such asset.
    (3) Except as provided in paragraph (4) of this subsection, for the 
purpose of any State or local law imposing a tax on or measured by 
income, any net operating loss of an individual or corporate debtor, 
including a net operating loss carryover to such debtor, shall be 
reduced by the amount of indebtedness forgiven or discharged in a case 
under this title, except to the extent that such forgiveness or 
discharge resulted in a disallowance under paragraph (2) of this 
subsection.
    (4) A reduction of a net operating loss or a net operating loss 
carryover under paragraph (3) of this subsection or of basis under 
paragraph (5) of this subsection is not required to the extent that the 
indebtedness of an individual or corporate debtor forgiven or 
discharged--
        (A) consisted of items of a deductible nature that were not 
    deducted by such debtor; or
        (B) resulted in an expired net operating loss carryover or other 
    deduction that--
            (i) did not offset income for any taxable period; and
            (ii) did not contribute to a net operating loss in or a net 
        operating loss carryover to the taxable period during or after 
        which such indebtedness was discharged.

    (5) For the purposes of a State or local law imposing a tax on or 
measured by income, the basis of the debtor's property or of property 
transferred to an entity required to use the debtor's basis in whole or 
in part shall be reduced by the lesser of--
        (A)(i) the amount by which the indebtedness of the debtor has 
    been forgiven or discharged in a case under this title; minus
        (ii) the total amount of adjustments made under paragraphs (2) 
    and (3) of this subsection; and
        (B) the amount by which the total basis of the debtor's assets 
    that were property of the estate before such forgiveness or 
    discharge exceeds the debtor's total liabilities that were 
    liabilities both before and after such forgiveness or discharge.

    (6) Notwithstanding paragraph (5) of this subsection, basis is not 
required to be reduced to the extent that the debtor elects to treat as 
taxable income, of the taxable period in which indebtedness is forgiven 
or discharged, the amount of indebtedness forgiven or discharged that 
otherwise would be applied in reduction of basis under paragraph (5) of 
this subsection.
    (7) For the purposes of this subsection, indebtedness with respect 
to which an equity security, other than an interest of a limited partner 
in a limited partnership, is issued to the creditor to whom such 
indebtedness was owed, or that is forgiven as a contribution to capital 
by an equity security holder other than a limited partner in the debtor, 
is not forgiven or discharged in a case under this title--
        (A) to any extent that such indebtedness did not consist of 
    items of a deductible nature; or
        (B) if the issuance of such equity security has the same 
    consequences under a law imposing a tax on or measured by income to 
    such creditor as a payment in cash to such creditor in an amount 
    equal to the fair market value of such equity security, then to the 
    lesser of--
            (i) the extent that such issuance has the same such 
        consequences; and
            (ii) the extent of such fair market value.

(Pub. L. 95-598, Nov. 6, 1978, 92 Stat. 2565; Pub. L. 98-353, title III, 
Sec. 438, July 10, 1984, 98 Stat. 370; Pub. L. 99-554, title II, 
Secs. 257(g), 283(c), Oct. 27, 1986, 100 Stat. 3114, 3116; Pub. L. 103-
394, title V, Sec. 501(d)(4), Oct. 22, 1994, 108 Stat. 4143.)


                      Historical and Revision Notes

                         legislative statements

    Section 346 of the House amendment, together with sections 728 and 
1146, represent special tax provisions applicable in bankruptcy. The 
policy contained in those sections reflects the policy that should be 
applied in Federal, State, and local taxes in the view of the House 
Committee on the Judiciary. The House Ways and Means Committee and the 
Senate Finance Committee did not have time to process a bankruptcy tax 
bill during the 95th Congress. It is anticipated that early in the 96th 
Congress, and before the effective date of the bankruptcy code [Oct. 1, 
1979], the tax committees of Congress will have an opportunity to 
consider action with respect to amendments to the Internal Revenue Code 
[title 26] and the special tax provisions in title 11. Since the special 
tax provisions are likely to be amended during the first part of the 
96th Congress, it is anticipated that the bench and bar will also study 
and comment on these special tax provisions prior to their revision.
    Special tax provisions: State and local rules. This section provides 
special tax provisions dealing with the treatment, under State or local, 
but not Federal, tax law, of the method of taxing bankruptcy estates of 
individuals, partnerships, and corporations; survival and allocation of 
tax attributes between the bankrupt and the estate; return filing 
requirements; and the tax treatment of income from discharge of 
indebtedness. The Senate bill removed these rules pending adoption of 
Federal rules on these issues in the next Congress. The House amendment 
returns the State and local tax rules to section 346 so that they may be 
studied by the bankruptcy and tax bars who may wish to submit comments 
to Congress.
    Withholding rules: Both the House bill and Senate amendment provide 
that the trustee is required to comply with the normal withholding rules 
applicable to the payment of wages and other payments. The House 
amendment retains this rule for State and local taxes only. The 
treatment of withholding of Federal taxes will be considered in the next 
Congress.
    Section 726 of the Senate amendment provides that the rule requiring 
pro rata payment of all expenses within a priority category does not 
apply to the payment of amounts withheld by a bankruptcy trustee. The 
purpose of this rule was to insure that the trustee pay the full amount 
of the withheld taxes to the appropriate governmental tax authority. The 
House amendment deletes this rule as unnecessary because the existing 
practice conforms essentially to that rule. If the trustee fails to pay 
over in full amounts that he withheld, it is a violation of his 
trustee's duties which would permit the taxing authority to sue the 
trustee on his bond.
    When taxes considered ``incurred'': The Senate amendment contained 
rules of general application dealing with when a tax is ``incurred'' for 
purposes of the various tax collection rules affecting the debtor and 
the estate. The House amendment adopts the substance of these rules and 
transfers them to section 507 of title 11.
    Penalty for failure to pay tax: The Senate amendment contains a rule 
which relieves the debtor and the trustee from certain tax penalties for 
failure to make timely payment of a tax to the extent that the 
bankruptcy rules prevent the trustee or the debtor from paying the tax 
on time. Since most of these penalties relate to Federal taxes, the 
House amendment deletes these rules pending consideration of Federal tax 
rules affecting bankruptcy in the next Congress.


                        senate report no. 95-989

    Subsection (a) indicates that subsections (b), (c), (d), (e), (g), 
(h), (i), and (j) apply notwithstanding any State or local tax law, but 
are subject to Federal tax law.
    Subsection (b)(1) provides that in a case concerning an individual 
under chapter 7 or 11 of title 11, income of the estate is taxable only 
to the estate and not to the debtor. The second sentence of the 
paragraph provides that if such individual is a partner, the tax 
attributes of the partnership are distributable to the partner's estate 
rather than to the partner, except to the extent that section 728 of 
title 11 provides otherwise.
    Subsection (b)(2) states a general rule that the estate of an 
individual is to be taxed as an estate. The paragraph is made subject to 
the remainder of section 346 and section 728 of title 11.
    Subsection (b)(3) requires the accounting method, but not 
necessarily the accounting period, of the estate to be the same as the 
method used by the individual debtor.
    Subsection (c)(1) states a general rule that the estate of a 
partnership or a corporated debtor is not a separate entity for tax 
purposes. The income of the debtor is to be taxed as if the case were 
not commenced, except as provided in the remainder of section 346 and 
section 728.
    Subsection (c)(2) requires the trustee, except as provided in 
section 728 of title 11, to file all tax returns on behalf of the 
partnership or corporation during the case.
    Subsection (d) indicates that the estate in a chapter 13 case is not 
a separate taxable entity and that all income of the estate is to be 
taxed to the debtor.
    Subsection (e) establishes a business deduction consisting of 
allowed expenses of administration except for tax or capital expenses 
that are not otherwise deductible. The deduction may be used by the 
estate when it is a separate taxable entity or by the entity to which 
the income of the estate is taxed when it is not.
    Subsection (f) imposes a duty on the trustee to comply with any 
Federal, State, or local tax law requiring withholding or collection of 
taxes from any payment of wages, salaries, commissions, dividends, 
interest, or other payments. Any amount withheld is to be paid to the 
taxing authority at the same time and with the same priority as the 
claim from which such amount withheld was paid.
    Subsection (g)(1)(A) indicates that neither gain nor loss is 
recognized on the transfer by law of property from the debtor or a 
creditor to the estate. Subparagraph (B) provides a similar policy if 
the property of the estate is returned from the estate to the debtor 
other than by a sale of property to debtor. Subparagraph (C) also 
provides for nonrecognition of gain or loss in a case under chapter 11 
if a corporate debtor transfers property to a successor corporation or 
to an affiliate under a joint plan. An exception is made to enable a 
taxing authority to cause recognition of gain or loss to the extent 
provided in IRC [title 26] section 371 (as amended by section 109 of 
this bill).
    Subsection (g)(2) provides that any of the three kinds of 
transferees specified in paragraph (1) take the property with the same 
character, holding period, and basis in the hands of the transferor at 
the time of such transfer. The transferor's basis may be adjusted under 
section 346(j)(5) even if the discharge of indebtedness occurs after the 
transfer of property. Of course, no adjustment will occur if the 
transfer is from the debtor to the estate or if the transfer is from an 
entity that is not discharged.
    Subsection (h) provides that the creation of the estate of an 
individual under chapter 7 or 11 of title 11 as a separate taxable 
entity does not affect the number of taxable years for purposes of 
computing loss carryovers or carrybacks. The section applies with 
respect to carryovers or carrybacks of the debtor transferred into the 
estate under section 346(i)(1) of title 11 or back to the debtor under 
section 346(i)(2) of title 11.
    Subsection (i)(1) states a general rule that an estate that is a 
separate taxable entity nevertheless succeeds to all tax attributes of 
the debtor. The six enumerated attributes are illustrative and not 
exhaustive.
    Subsection (i)(2) indicates that attributes passing from the debtor 
into an estate that is a separate taxable entity will return to the 
debtor if unused by the estate. The debtor is permitted to use any such 
attribute as though the case had not been commenced.
    Subsection (i)(3) permits an estate that is a separate taxable 
entity to carryback losses of the estate to a taxable period of the 
debtor that ended before the case was filed. The estate is treated as if 
it were the debtor with respect to time limitations and other 
restrictions. The section makes clear that the debtor may not carryback 
any loss of his own from a tax year during the pendency of the case to 
such a period until the case is closed. No tolling of any period of 
limitation is provided with respect to carrybacks by the debtor of post-
petition losses.
    Subsection (j) sets forth seven special rules treating with the tax 
effects of forgiveness or discharge of indebtedness. The terms 
``forgiveness'' and ``discharge'' are redundant, but are used to clarify 
that ``discharge'' in the context of a special tax provision in title 11 
includes forgiveness of indebtedness whether or not such indebtedness is 
``discharged'' in the bankruptcy sense.
    Paragraph (1) states the general rule that forgiveness of 
indebtedness is not taxable except as otherwise provided in paragraphs 
(2)-(7). The paragraph is patterned after sections 268, 395, and 520 of 
the Bankruptcy Act [sections 668, 795, and 920 of former title 11].
    Paragraph (2) disallows deductions for liabilities of a deductible 
nature in any year during or after the year of cancellation of such 
liabilities. For the purposes of this paragraph, ``a deduction with 
respect to a liability'' includes a capital loss incurred on the 
disposition of a capital asset with respect to a liability that was 
incurred in connection with the acquisition of such asset.
    Paragraph (3) causes any net operating loss of a debtor that is an 
individual or corporation to be reduced by any discharge of indebtedness 
except as provided in paragraphs (2) or (4). If a deduction is 
disallowed under paragraph (2), then no double counting occurs. Thus, 
paragraph (3) will reflect the reduction of losses by liabilities that 
have been forgiven, including deductible liabilities or nondeductible 
liabilities such as repayment of principal on borrowed funds.
    Paragraph (4) specifically excludes two kinds of indebtedness from 
reduction of net operating losses under paragraph (3) or from reduction 
of basis under paragraph (5). Subparagraph (A) excludes items of a 
deductible nature that were not deducted or that could not be deducted 
such as gambling losses or liabilities for interest owed to a relative 
of the debtor. Subparagraph (B) excludes indebtedness of a debtor that 
is an individual or corporation that resulted in deductions which did 
not offset income and that did not contribute to an unexpired net 
operating loss or loss carryover. In these situations, the debtor has 
derived no tax benefit so there is no need to incur an offsetting 
reduction.
    Paragraph (5) provides a two-point test for reduction of basis. The 
paragraph replaces sections 270, 396, and 522 of the Bankruptcy Act 
[sections 670, 796, and 922 of former title 11]. Subparagraph (A) sets 
out the maximum amount by which basis may be reduced--the total 
indebtedness forgiven less adjustments made under paragraphs (2) and 
(3). This avoids double counting. If a deduction is disallowed under 
paragraph (2) or a carryover is reduced under paragraph (3) then the tax 
benefit is neutralized, and there is no need to reduce basis. 
Subparagraph (B) reduces basis to the extent the debtor's total basis of 
assets before the discharge exceeds total preexisting liabilities still 
remaining after discharge of indebtedness. This is a ``basis solvency'' 
limitation which differs from the usual test of solvency because it 
measures against the remaining liabilities the benefit aspect of assets, 
their basis, rather than their value. Paragraph (5) applies so that any 
transferee of the debtor's property who is required to use the debtor's 
basis takes the debtor's basis reduced by the lesser of (A) and (B). 
Thus, basis will be reduced, but never below a level equal to 
undischarged liabilities.
    Paragraph (6) specifies that basis need not be reduced under 
paragraph (5) to the extent the debtor treats discharged indebtedness as 
taxable income. This permits the debtor to elect whether to recognize 
income, which may be advantageous if the debtor anticipates subsequent 
net operating losses, rather than to reduce basis.
    Paragraph (7) establishes two rules excluding from the category of 
discharged indebtedness certain indebtedness that is exchanged for an 
equity security issued under a plan or that is forgiven as a 
contribution to capital by an equity security holder. Subparagraph (A) 
creates the first exclusion to the extent indebtedness consisting of 
items not of a deductible nature is exchanged for an equity security, 
other than the interests of a limited partner in a limited partnership, 
issued by the debtor or is forgiven as a contribution to capital by an 
equity security holder. Subparagraph (B) excludes indebtedness 
consisting of items of a deductible nature, if the exchange of stock for 
debts has the same effect as a cash payment equal to the value of the 
equity security, in the amount of the fair market value of the equity 
security or, if less, the extent to which such exchange has such effect. 
The two provisions treat the debtor as if it had originally issued stock 
instead of debt. Subparagraph (B) rectifies the inequity under current 
law between a cash basis and accrual basis debtor concerning the 
issuance of stock in exchange for previous services rendered that were 
of a greater value than the stock. Subparagraph (B) also changes current 
law by taxing forgiveness of indebtedness to the extent that stock is 
exchanged for the accrued interest component of a security, because the 
recipient of such stock would not be regarded as having received money 
under the Carman doctrine.

                       References in Text

    The Internal Revenue Code of 1986, referred to in subsec. (a), is 
classified generally to Title 26, Internal Revenue Code.
    Section 371 of the Internal Revenue Code of 1986, referred to in 
subsec. (g)(1)(C), was repealed by Pub. L. 101-508, title XI, 
Sec. 11801(a)(19), Nov. 5, 1990, 104 Stat. 1388-521.


                               Amendments

    1994--Subsec. (a). Pub. L. 103-394, Sec. 504(d)(4)(A), substituted 
``Internal Revenue Code of 1986'' for ``Internal Revenue Code of 1954 
(26 U.S.C. 1 et seq.)''.
    Subsec. (g)(1)(C). Pub. L. 103-394, Sec. 501(d)(4)(B), substituted 
``Internal Revenue Code of 1986'' for ``Internal Revenue Code of 1954 
(26 U.S.C. 371)''.
    1986--Subsec. (b)(1). Pub. L. 99-554, Sec. 257(g)(1), inserted 
reference to chapter 12.
    Subsec. (g)(1)(C). Pub. L. 99-554, Sec. 257(g)(2), inserted 
reference to chapter 12.
    Subsec. (i)(1). Pub. L. 99-554, Sec. 257(g)(3), inserted reference 
to chapter 12.
    Subsec. (j)(7). Pub. L. 99-554, Sec. 283(c), substituted ``owed'' 
for ``owned''.
    1984--Subsec. (c)(2). Pub. L. 98-353 substituted ``corporation'' for 
``operation''.


                    Effective Date of 1994 Amendment

    Amendment by Pub. L. 103-394 effective Oct. 22, 1994, and not 
applicable with respect to cases commenced under this title before Oct. 
22, 1994, see section 702 of Pub. L. 103-394, set out as a note under 
section 101 of this title.


                    Effective Date of 1986 Amendment

    Amendment by section 257 of Pub. L. 99-554 effective 30 days after 
Oct. 27, 1986, but not applicable to cases commenced under this title 
before that date, see section 302(a), (c)(1) of Pub. L. 99-554, set out 
as a note under section 581 of Title 28, Judiciary and Judicial 
Procedure.
    Amendment by section 283 of Pub. L. 99-554 effective 30 days after 
Oct. 27, 1986, see section 302(a) of Pub. L. 99-554.


                    Effective Date of 1984 Amendment

    Amendment by Pub. L. 98-353 effective with respect to cases filed 90 
days after July 10, 1984, see section 552(a) of Pub. L. 98-353, set out 
as a note under section 101 of this title.

                  Section Referred to in Other Sections

    This section is referred to in sections 106, 1146, 1231 of this 
title.


Back Index Next

Note: For affordable legal assistance The Center For Debt Management highly recommends Standard Legal's Do-It-Yourself Bankruptcy Forms Software Kits. For credit repair services,
the most trusted law firm in America with over 15 years of experience is Lexington Law Firm.

For more bankruptcy help and bankruptcy alternatives, go to Bankruptcy Resources

Go to Index of Related Articles and Resources!

Click Below To Check Out More Financial Resources

Return to Top

The Center For Debt Management™

Helping Consumers Save Money and Reduce Debt Is Our Only Business!™

We invite you to explore the sectors listed below. We promise that you'll find exceptional values, offers and resources in which to reduce your living expenses and to enjoy life!


Debt Management and Financial Services! The Internet's oldest and most comprehensive debt management agency! Resources for debt management, consumer credit counseling, debt consolidation, debt reduction settlements, legal aid, financial aid, loans and financing, credit repair, credit reports, insurance quotes, income sources, tax assistance, and more.

Established in 1989 and serving the online community since 1992!


This site was created and designed by Daniel A. Gelinas
Disclaimer and Privacy Policy      © Copyright  2007 "The Center For Debt Management"      Contact Us
Return to Top

Legal Resource Center: United States Code TITLE 11 Filing Bankruptcy Forms Software