Under § 108(i) , enacted into law in 2009, a taxpayer may elect to defer recognition of discharge of business indebtedness income resulting from a “reacquisition”, a technical term contained in the statute, with respect to an “applicable debt instrument” during the calendar year 2009 or 2010. An “applicable debt instrument” is a debt instrument issued by a C corporation or by “any other person in connection with the conduct of a trade or business by such person.” A “reacquisition” is an acquisition of a debt instrument by the “debtor” that “issued (or is otherwise the obligor under) the debt instrument” or by a person related to the debtor. In addition, a total forgiveness of the debt by the holder or a contribution of the debt to capital are also treated as “reacquisitions”. Where a taxpayer elects under §108(i), any cancellation of indebtedness income arising from the reacquisition is including in gross income ratably over a five year period beginning in 2014. Stated differently, the deferral period for a reacquisition during in 2009, starts with the fifth taxable year following the taxable year during which the reacquisition occurs and for a reacquisition during in 2010, the five year deferral period starts with the fourth taxable year following the reacquisition year. If the §108(i) election is made as to a particular debt, the taxpayer may not elect to exclude the same income under another exception contained in §108, including the insolvency exception, the qualified farm or real property business indebtedness exceptions. Where, for example, a partnership reacquires its debt with COD income, the partnership must elect under §108(i). In such case, the partnership allocates the deferred income among its partners immediately before the discharge in the manner that it would have allocated the income if it had not elected to defer the income. Each partner then recognizes his or her distributive share of the deferred income over the relevant five-year period. Any decrease in a partner's share of partnership liabilities as a result of the discharge is disregarded at the time of the discharge to the extent it would cause the partner to recognize gain. This is to prevent whipsaw from occurring under the §752 rules for deemed distributions of cash resulting from the discharge of the debt. Instead, a partner must take into account any liability decrease so disregarded “at the same time, and to the extent remaining in the same amount, as [the deferred income] is recognized.” There are events which will cause the deferral to accelerate and be included in gross income. This will occur where the taxpayer dies or he sells substantially all of the assets of the business or ceases to operate the business.
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Special deferral of cancellation of indebtedness income under Section 108(i) continues through this year
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