You are here

Is It a Loan? Is There an Accession to Wealth?

30 July, 2015 - 12:19

Now consider a case (and its appeal) in which the very characterization of the facts generated considerable disagreement. Included here are three opinions from the Tax Court and one from the Third Circuit Court of Appeals. Ultimately, of course, it is the opinion of the Third Circuit that prevails. Be ready to articulate the positions of the different judges as to just exactly what happened.

Zarin v. Commissioner, 92 T.C. 1084 (1989), rev’d, 916 F.2d 110 (3rd Cir. 1990).

Cohen, Judge:

Respondent determined deficiencies of $2,466,622 and $58,688 in petitioners’ Federal income taxes for 1980 and 1981, respectively.

In the notice of deficiency, respondent ... asserted that petitioners realized ... taxable income of $2,935,000 in 1981 through cancellation of indebtedness. The sole issue for decision is whether petitioners had income from discharge of gambling indebtedness during 1981.


David Zarin (petitioner) was a professional engineer involved in the development, construction, and management of multi-family housing and nursing home facilities. ...

Petitioner occasionally stayed at Resorts International Hotel, Inc. (Resorts), in Atlantic City in connection with his construction activities. ... In June 1978, petitioner applied to Resorts for a $10,000 line of credit to be used for gambling. After a credit check, which included inquiries with petitioner’s banks and “Credit Central,” an organization that maintains records of individuals who gamble in casinos, the requested line of credit was granted, despite derogatory information received from Credit Central.

The game most often played by petitioner, craps, creates the potential of losses or gains from wagering on rolls of dice. When he played craps at Resorts, petitioner usually bet the table limit per roll of the dice. Resorts quickly became familiar with petitioner. At petitioner’s request, Resorts would raise the limit at the table to the house maximum. When petitioner gambled at Resorts, crowds would be attracted to his table by the large amounts he would wager. Gamblers would wager more than they might otherwise because of the excitement caused by the crowds and the amounts that petitioner was wagering. Petitioner was referred to as a “valued gaming patron” by executives at Resorts.

By November 1979, petitioner’s permanent line of credit had been increased to $200,000. Despite this increase, at no time after the initial credit check did Resorts perform any further analysis of petitioner’s creditworthiness. Many casinos extend complimentary services and privileges (“comps”) to retain the patronage of their best customers. Beginning in the late summer of 1978, petitioner was extended the complimentary use of a luxury three-room suite at Resorts. Resorts progressively increased the complimentary services to include free meals, entertainment, and 24-hour access to a limousine. By late 1979, Resorts was extending such comps to petitioner’s guests as well. By this practice, Resorts sought to preserve not only petitioner’s patronage but also the attractive power his gambling had on others.

Once the line of credit was established, petitioner was able to receive chips at the gambling table. Patrons of New Jersey casinos may not gamble with currency, but must use chips provided by the casino. Chips may not be used outside the casino where they were issued for any purpose.

Petitioner received chips in exchange for signing counter checks, commonly known as “markers.” The markers were negotiable drafts payable to Resorts drawn on petitioner’s bank. The markers made no reference to chips, but stated that cash had been received.

Petitioner had an understanding with Gary Grant, the credit manager at Resorts, whereby the markers would be held for the maximum period allowable under New Jersey law, which at that time was 90 days, whereupon petitioner would redeem them with a personal check. At all times pertinent hereto, petitioner intended to repay any credit amount properly extended to him by Resorts and to pay Resorts in full the amount of any personal check given by him to pay for chips or to reduce his gambling debt. Between June 1978 and December 1979, petitioner incurred gambling debts of approximately $2.5 million. Petitioner paid these debts in full.

On October 3, 1979, the New Jersey Division of Gaming Enforcement filed with the New Jersey Casino Control Commission a complaint against Resorts and several individuals, which alleged 809 violations pertaining to Resorts’ casino gaming credit system, its internal procedures, and its administrative and accounting controls. Of those 809 violations, 100 were specifically identified as pertaining to petitioner and a gambling companion. Pursuant to a request for a cease and desist order contained in the complaint, a Casino Control Commissioner issued an Emergency Order on October 9, 1979. That order provided, in relevant part:

5. Effective immediately, Resorts shall not issue credit to any patron whose patron credit reference card indicates that the credit now outstanding exceeds the properly approved credit limit. In determining whether a credit limit has been exceeded, all yet undeposited checks received in payment of a counter check or checks shall be included as credits.

After the Emergency Order was issued, Resorts began a policy of treating petitioner’s personal checks as “considered cleared.” Thus, when petitioner wrote a personal check it was treated as a cash transaction, and the amount of the check was not included in determining whether he had reached his permanent credit limit. In addition, Resorts extended petitioner’s credit limit by giving him temporary increases known as “this trip only” credit. Although not specifically addressed by the New Jersey Casino Control regulations in effect during 1979 and 1980, a “this trip only” credit increase was a temporary credit increase for a patron’s current trip to Atlantic City, and was required to be reduced before the patron’s return. Both of these practices effectively ignored the Emergency Order. Petitioner did not understand the difference between “this trip only” credit and his permanent credit line, and he thought that he no longer had a credit limit.

By January 1980, petitioner was gambling compulsively at Resorts. Petitioner was gambling 12-16 hours per day, 7 days per week in the casino, and he was betting up to $15,000 on each roll of the dice. Petitioner was not aware of the amount of his gambling debts.

On April 12, 1980, Resorts increased petitioner’s permanent credit line to $215,000, without any additional credit investigation. During April 1980, petitioner delivered personal checks and markers in the total amount of $3,435,000 that were returned to Resorts as having been drawn against insufficient funds. On April 29, 1980, Resorts cut off petitioner’s credit. Shortly thereafter, petitioner indicated to the Chief Executive Officer of Resorts that he intended to repay the obligations.

On November 18, 1980, Resorts filed a complaint in New Jersey state court seeking collection of $3,435,000 from petitioner based on the unpaid personal checks and markers. On March 4, 1981, petitioner filed an answer, denying the allegations and asserting a variety of affirmative defenses.

On September 28, 1981, petitioner settled the Resorts suit by agreeing to make a series of payments totaling $500,000. Petitioner paid the $500,000 settlement amount to Resorts in accordance with the terms of the agreement. The difference between petitioner’s gambling obligations of $3,435,000 and the settlement payments of $500,000 is the amount that respondent alleges to be income from forgiveness of indebtedness.

On July 8, 1983, Resorts was fined $130,000 for violating the Emergency Order on at least 13 different occasions, 9 of which pertained directly to credit transactions between Resorts and petitioner.

Income From the Discharge of Indebtedness

In general, gross income includes all income from whatever source derived, including income from the discharge of indebtedness. § 61(a)(12). Not all discharges of indebtedness, however, result in income. [citation omitted]. The gain to the debtor from such discharge is the resultant freeing up of his assets that he would otherwise have been required to use to pay the debt. SeeUnited States v. Kirby Lumber Co., 284 U.S. 1 (1931).

... Petitioner argues that the settlement agreement between Resorts and himself did not give rise to ... income because, among other reasons, the debt instruments were not enforceable under New Jersey law and, in any event, the settlement should be treated as a purchase price adjustment that does not give rise to income from the discharge of indebtedness.

Petitioner argues that gambling and debts incurred to acquire gambling opportunity have always received special treatment at common law and in the Internal Revenue Code and that agreeing with respondent in this case would result in taxing petitioner on his losses. Petitioner relies on United States v. Hall, 307 F.2d 238 (10th Cir. 1962), as establishing a rule that the cancellation of indebtedness doctrine is not applicable to the settlement of a gambling debt.

The parties have primarily focused their arguments on whether the debt instruments memorializing the credit transactions were legally enforceable and whether legal enforceability is of significance in determining the existence of income from discharge of indebtedness. Petitioner argues that his debt was unenforceable and thus there was no debt to be discharged and no resulting freeing up of assets because his assets were never encumbered. Petitioner relies on N.J. Stat. Ann. § 5:12-101(f) (West 1988), and Resorts International Hotel, Inc. v. Salomone, 178 N.J. Super. 598, 429 A.2d 1078 (App. Div. 1981), in arguing that the gambling debts were unenforceable.

... We must decide, therefore, whether legal enforceability is a prerequisite to recognition of income in this case.


In United States v. Hall, supra, the taxpayer transferred appreciated property in satisfaction of a gambling debt of an undetermined amount incurred in Las Vegas, Nevada. The Commissioner sought to tax as gain the difference between the amount of the discharged debt and the basis of the appreciated property. Although licensed gambling was legal in Nevada, gambling debts were nevertheless unenforceable. The Court of Appeals concluded that, under the circumstances, the amount of the gambling debt had no significance for tax purposes. The Court reasoned that, “The cold fact is that taxpayer suffered a substantial loss from gambling, the amount of which was determined by the transfer.” 307 F.2d at 241. The Court of Appeals relied on the so-called “diminution of loss theory” developed by the Supreme Court in Bowers v. Kerbaugh-Empire Co., 271 U.S. 170 (1926). In that case, the taxpayer borrowed money that was subsequently lost in a business transaction. The debt was satisfied for less than its face amount. The Supreme Court held that the taxpayer was not required to recognize income from discharge of a debt because the transaction as a whole lost money.

The Court of Appeals for the Tenth Circuit in Hall quoted at length from Bradford v. Commissioner, 233 F.2d 935 (6th Cir. 1956), which noted that the Kerbaugh-Empire case was decided before United States v. Kirby Lumber Co., 284 U.S. 1 (1931), and Burnet v. Sanford & Brooks Co., 282 U.S. 359 (1931), and had been “frequently criticized and not easily understood.” Subsequent developments further suggest that Kerbaugh-Empire has lost its vitality. SeeVukasovich, Inc. v. Commissioner, 790 F.2d 1409 (9th Cir. 1986) ...


In the instant case, symmetry from year to year is not accomplished unless we treat petitioner’s receipt of the loan from Resorts (i.e., the markers converted to chips) and the subsequent discharge of his obligation to repay that loan in a consistent manner. Petitioner received credit of $3,435,000 from Resorts. He treated these amounts as a loan, not reporting any income on his 1980 tax return. CompareUnited States v. Rosenthal, 470 F.2d 837 (2d Cir. 1972), and United States v. Rochelle, 384 F.2d 748 (5th Cir. 1967). The parties have stipulated that he intended to repay the amounts received. Although Resorts extended the credit to petitioner with the expectation that he would continue to gamble, theoretically petitioner could have redeemed the chips for cash. Certainly if he had won, rather than lost, at gambling, the amounts borrowed would have been repaid.

Petitioner argues that he did not get anything of value when he received the chips other than the “opportunity to gamble,” and that, by reason of his addiction to gambling, he was destined to lose everything that he temporarily received. Thus, he is in effect arguing, based on Hall, that the settlement merely reduced the amount of his loss and did not result in income.


We have no doubt that an increase in wealth from the cancellation of indebtedness is taxable where the taxpayer received something of value in exchange for the indebtedness. ...

We conclude here that the taxpayer did receive value at the time he incurred the debt and that only his promise to repay the value received prevented taxation of the value received at the time of the credit transaction. When, in the subsequent year, a portion of the obligation to repay was forgiven, the general rule that income results from forgiveness of indebtedness, § 61(a)(12), should apply.

Legal enforceability of an obligation to repay is not generally determinative of whether the receipt of money or property is taxable. James v. United States, 366 U.S. 213, 219 (1961). ...

Here the timing of recognition was set when the debt was compromised. The amount to be recognized as income is the part of the debt that was discharged without payment. The enforceability of petitioner’s debts under New Jersey law did not affect either the timing or the amount and thus is not determinative for Federal income tax purposes. We are not persuaded that gambling debts should be accorded any special treatment for the benefit of the gambler – compulsive or not. As the Court of Appeals in United States v. Hall stated, “The elimination of a gambling debt is * * * a transaction that may have tax consequences independent of the amount of the debt and certainly cannot be used as a tool to avoid a tax incident which is shielded only by the screen of its unenforceable origin.” 307 F.2d at 242.

Disputed Debt

Petitioner also relies on the principle that settlement of disputed debts does not give rise to income. N. Sobel, Inc. v. Commissioner, 40 B.T.A. 1263 (1939), cited with approval in Colonial Savings Assn. v. Commissioner, 85 T.C. 855, 862-863 (1985), aff’d, 854 F.2d 1001 (7th Cir. 1988). Prior to the settlement, the amount of petitioner’s gambling debt to Resorts was a liquidated amount, unlike the taxpayer’s debt in Hall. There is no dispute about the amount petitioner received. The parties dispute only its legal enforceability, i.e., whether petitioner could be legally compelled to pay Resorts the fixed amount he had borrowed. A genuine dispute does not exist merely because petitioner required Resorts to sue him before making payment of any amount on the debt. ... In our view, petitioner’s arguments concerning his defenses to Resorts’ claim, which apparently led to Resorts’ agreement to discount the debt, are overcome by (1) the stipulation of the parties that, at the time the debt was created, petitioner agreed to and intended to repay the full amount, and (2) our conclusion that he received full value for what he agreed to pay, i.e., over $3 million worth of chips and the benefits received by petitioner as a “valued gambling patron” of Resorts.

Deductibility of Gambling Losses


Purchase Money Debt Reduction

Petitioner argues that the settlement with Resorts should be treated as a purchase price adjustment that does not give rise to income from the discharge of indebtedness. He cites the parties’ stipulation, which included a statement that, “Patrons of New Jersey casinos may not gamble with currency. All gambling must be done with chips provided by the casino. Such chips are property which are not negotiable and may not be used to gamble or for any other purpose outside the casino where they were issued.” Respondent argues that petitioner actually received “cash” in return for his debts.

Section 108(e)(5) was added to the Internal Revenue Code by the Bankruptcy Tax Act of 1980, Pub. L. 96-589, 94 Stat. 3389, 3393, and provides:

(5) Purchase-money debt reduction for solvent debtor treated as price reduction. – If –

(A) the debt of a purchaser of property to the seller of such property which arose out of the purchase of such property is reduced,

(B) such reduction does not occur –

(i) in a title 11 case, or

(ii) when the purchaser is insolvent, and

(C) but for this paragraph, such reduction would be treated as income to the purchaser from the discharge of indebtedness, then such reduction shall be treated as a purchase price adjustment.

Section 108(e)(5) was enacted “to eliminate disagreements between the Internal Revenue Service and the debtor as to whether, in a particular case to which the provision applies, the debt reductions should be treated as discharge income or a true price adjustment.” S. Rept. No. 96-1035 (1980). Section 108(e)(5) applies to transactions occurring after December 31, 1980. S. Rept. No. 96-1035, supra. The provisions of this section are not elective.


It seems to us that the value received by petitioner in exchange for the credit extended by Resorts does not constitute the type of property to which § 108(e)(5) was intended to or reasonably can be applied. Petitioner argued throughout his briefs that he purchased only “the opportunity to gamble” and that the chips had little or no value. We agree with his description of what he bargained for but not with his conclusion about the legal effect.

As indicated above, we are persuaded ... that petitioner received full value for his debt. ...

Petitioner purchased the opportunity to gamble as he received chips in exchange for his markers. ... Upon receipt of the chips, Petitioner immediately proceeded to gamble with these chips. * * *


* * *

* * * ... Petitioner, in entering into the gaming transactions with Resorts, did not receive any item of tangible value. In fact, Petitioner received nothing more than the opportunity to bet on which of 36 permutations of the dice would appear on a given roll of the dice. * * *


While disagreeing with petitioner’s assertion as to the value of what he received, we agree that what he received was something other than normal commercial property. He bargained for and received the opportunity to gamble and incidental services, lodging, entertainment, meals, and transportation. Petitioner’s argument that he was purchasing chips ignores the essence of the transaction, as more accurately described in his other arguments here quoted. The “property” argument simply overemphasizes the significance of the chips. As a matter of substance, chips in isolation are not what petitioner purchased.

The “opportunity to gamble” would not in the usual sense of the words be “property” transferred from a seller to a purchaser. The terminology used in § 108(e)(5) is readily understood with respect to tangible property and may apply to some types of intangibles. Abstract concepts of property are not useful, however, in deciding whether what petitioner received is within the contemplation of the section.

Obviously the chips in this case were a medium of exchange within the Resorts casino, and in that sense they were a substitute for cash, just as Federal Reserve Notes, checks, or other convenient means of representing credit balances constitute or substitute for cash. ...

We conclude that petitioner’s settlement with Resorts cannot be construed as a “purchase-money debt reduction” arising from the purchase of property within the meaning of § 108(e)(5).


Decision will be entered under Rule 155.

Reviewed by the Court.

Nims, Parker, Körner, Shields, Hamblen, Clapp, Gerber, Wright, Parr, and Colvin, JJ., agree with the majority opinion.

Tannenwald, J., dissenting:

The foundation of the majority’s reasoning is that Mr. Zarin realized income in an amount equal to the amount of the credit extended to him because he was afforded the “opportunity to gamble.” ...


I think it highly significant that in all the decided cases involving the cancellation of indebtedness, the taxpayer had, in a prior year when the indebtedness was created, received a nontaxable benefit clearly measurable in monetary terms which would remain untaxed if the subsequent cancellation of the indebtedness were held to be tax free. Such is simply not the case herein. The concept that petitioner received his money’s worth from the enjoyment of using the chips (thus equating the pleasure of gambling with increase in wealth) produces the incongruous result that the more a gambler loses, the greater his pleasure and the larger the increase in his wealth. [footnote omitted]. Under the circumstances, I think the issue of enforceability becomes critical. In this connection, the repeated emphasis by the majority on the stipulation that Mr. Zarin intended to repay the full amount at the time the debt was created is beside the point. If the debt was unenforceable under New Jersey law, that intent is irrelevant.

It is clear that respondent has not shown that the checks Mr. Zarin gave Resorts were enforceable under New Jersey law. New Jersey law provides that checks issued to pay for gambling are enforceable provided that a set of requirements relating to, among other things, proper payees, dating and holding periods, is met. See N.J. Stat. Ann. § 5:12-101 (West 1988).” Any check cashed, transferred, conveyed or given in violation of * * * [those requirements] shall be invalid and unenforceable for the purposes of collection * * *.” N.J. Stat. Ann. § 5:12-101(f) (West 1988). Furthermore, strict compliance with those requirements is mandatory for a check to be enforceable. [citations omitted]. Respondent simply has not shown that the markers given Resorts by Mr. Zarin were drawn and handled in strict compliance with the statute. In fact, the number of violations of the Emergency Order asserted against Resorts by the New Jersey gambling commission, including some betting transactions with petitioner, casts substantial doubt on whether the checks [footnote omitted] were in fact so handled.


... I think it significant that because the debts involved herein were unenforceable from the moment that they were created, there was no freeing up of petitioners’ assets when they were discharged, seeUnited States v. Kirby Lumber Co., supra, and therefore there was no increase in petitioners’ wealth that could constitute income. Cf. Commissioner v. Glenshaw Glass Co., supra. This is particularly true in light of the fact that the chips were given to Mr. Zarin with the expectation that he would continue to gamble and, therefore, did not constitute an increase in his wealth when he received them in the same sense that the proceeds of a non-gambling loan would. Cf.Rail Joint Co. v. Commissioner, 22 B.T.A. 1277 (1931), aff’d, 61 F.2d 751 (2d Cir. 1932) (cited in Commissioner v. Tufts, 461 U.S. at 209 n.6), where we held that there was no income from the discharge on indebtedness when the amount paid for the discharge was in excess of the value of what had been received by the debtor at the time the indebtedness was created even though the face amount of the indebtedness and hence the taxpayer’s liability was reduced; Fashion Park, Inc. v. Commissioner, 21 T.C. 600 (1954) (same holding).

I am reinforced in my conclusion by the outcome in United States v. Hall, 307 F.2d 238 (10th Cir. 1962). In that case, the court held that there was no income from the discharge of gambling indebtedness because the debt was not enforceable under Nevada law, and observed that such a debt “has but slight potential and does not meet the requirements of debt necessary to justify the mechanical operation of general rules of tax law relating to cancellation of debt.” 307 F.2d at 241. While a gambling debt is not unenforceable under all circumstances in New Jersey, the indebtedness involved herein was unenforceable, and I agree with the court in Hall that an unenforceable “gambling debt * * * has no significance for tax purposes,” 307 F.2d at 242, at least where such unenforceability exists from the moment the debt is created. [footnote omitted]

I find further support for my conclusion from the application of the principle that if there is a genuine dispute as to liability on the underlying obligation, settlement of that obligation will not give rise to income from discharge of indebtedness. N. Sobel, Inc. v. Commissioner, 40 B.T.A. 1263 (1939), cited with approval in Colonial Savings Association v. Commissioner, 85 T.C. 855, 862-863 (1985), aff’d, 854 F.2d 1001 (7th Cir. 1988). Respondent simply has not met his burden of showing that the dispute between Resorts and Mr. Zarin was not a genuine dispute as to Mr. Zarin’s liability for the underlying obligations, and I believe that, at least as to that debt that was not entered into as required by New Jersey law and was therefore unenforceable, the dispute was in fact genuine. While there is language in Sobel and Colonial Savings indicating that United States v. Kirby Lumber Co., supra, applies when there is a liquidated amount of indebtedness, I do not read that language as requiring that Kirby Lumber must apply unless the amount is unliquidated, where there is a genuine dispute as to the underlying liability.

I would hold for petitioner.

Wells, J., agrees with this dissent.

Jacobs, J., dissenting:


Ruwe, J., dissenting:

Although I agree with much of the majority’s reasoning in this case, I dissent from that portion of the opinion which holds that § 108(e)(5) is inapplicable to the transaction at issue. I find no support in the language of the statute or the accompanying legislative history for the majority’s determination that the gambling chips purchased by petitioner do not constitute “property” for purposes of § 108(e)(5). Because I believe that petitioner acquired “property” from the casino on credit and subsequently negotiated a reduction of his debt to the casino, I would apply § 108(e)(5) in this case.


The majority agrees that the chips had value. It correctly finds that petitioner paid for the chips by giving markers to the casino, that the markers constituted petitioner’s promise to pay money to the casino, and that the chips had a value of over $3 million. The parties stipulated that the chips were “property.” It is beyond question that gambling chips constitute what is commonly referred to as property. See Black’s Law Dictionary, pp. 1095-1096 (5th ed. 1979).

... Having concluded that petitioner received chips having a value equivalent to his markers, it is impossible to describe the gambling chips as anything other than “property.” Apparently, cognizant of this dilemma, the majority finally settles on the conclusion that the gambling chips purchased by petitioner were “something other than normal commercial property.” I take this to be a finding of fact since the term “normal commercial property” does not appear in the relevant statutes, regulations, or legislative history.

The majority’s legal conclusion seems to be that gambling chips, being other than “normal commercial property,” do not constitute “property” within the meaning of § 108(e)(5). In deciding this legal issue of first impression, the majority fails to define either the term “property” as used in § 108(e)(5) or the term “normal commercial property.”

If the term “normal commercial property” has a meaning, there is no reason why gambling chips should not be included. ...

Chips are certainly “normal commercial property” in a casino’s commercial gambling business. ... In any event, neither the statute nor its legislative history restricts its application to “normal commercial property.”

The majority concludes that petitioner “received full value for what he agreed to pay, i.e., over $3 million worth of chips.” [footnote omitted]. However, the majority concludes that “chips in isolation are not what petitioner purchased.” The majority reasons that the value of the chips is really derived from the fact that they give the holder of the chips the opportunity to gamble. This seems akin to saying that a taxpayer who purchases a 99-year leasehold to a vacant lot in midtown Manhattan has not acquired “property” because the value of the leasehold interest is derived from the lessee’s “opportunity” to build a large office building. That the chips derive value from the opportunity they afford is no reason why they are not property. A person who purchases chips receives, among other things, the casino’s promise to provide a gambling opportunity. In that sense, the opportunity is no different than any other valuable and assignable contract right which we would surely recognize as property. A license is nothing more than a grant of an opportunity to the licensee to do something which he would otherwise be prohibited from doing. Nevertheless, a license is considered property. Barry v. Barchi, 443 U.S. 55, 64 (1979) (state racing and wagering license); Wolfe v. United States, 798 F.2d 1241, 1245 (9th Cir. 1986) (ICC license); Agua Bar & Lounge, Inc. v. United States, 539 F.2d 935, 937-938 (3d Cir. 1976) (liquor license). ...


The term “property” as used in § 108(e)(5) is not specifically defined. However, the term “property” is generally understood to be a broad concept. ...


Section 108(e)(5) and the background giving rise to its enactment support its application to the facts in this case. Prior to enactment of § 108(e)(5), case law distinguished between true discharge of indebtedness situations which required recognition of income and purchase price adjustments. A purchase price adjustment occurred when a purchaser of property agreed to incur a debt to the seller but the debt was subsequently reduced because the value of the property was less than the agreed upon consideration. A mere purchase price adjustment does not result in discharge of indebtedness income. SeeN. Sobel, Inc. v. Commissioner, 40 B.T.A. 1263 (1939); B. Bittker & L. Lokken, Federal Taxation of Income, Estates and Gifts, ¶¶ 6-39 – 6-40 (2d ed. 1989).

Section 108(e)(5) was enacted “to eliminate disagreements between the Internal Revenue Service and the debtor as to whether, in a particular case to which the provision applies, the debt reductions should be treated as discharge income or a true price adjustment.” S. Rept. No. 96-1035 (1980). ... Its provisions are not elective. ... [O]ne of petitioner’s arguments is that the value of what he received was less than the amount of debt incurred. Respondent argues, and the majority finds, that the chips petitioner received were worth the full value of the debt. Thus, this case presents the very controversy that the above-quoted legislative history says Congress tried to eliminate by enacting § 108(e)(5).

For a reduction in the amount of a debt to be treated as a purchase price adjustment under § 108(e)(5), the following conditions must be met: (1) The debt must be that of a purchaser of property to the seller which arose out of the purchase of such property; (2) the taxpayer must be solvent and not in bankruptcy when the debt reduction occurs; and (3) except for § 108(e)(5), the debt reduction would otherwise have resulted in discharge of indebtedness income. § 108(e)(5); B. Bittker & L. Lokken, supra at ¶¶. 6-40 – 6-41; see alsoSutphin v. United States, 14 Cl. Ct. 545, 549 (1988); Juister v. Commissioner, T.C. Memo. 1987-292; DiLaura v. Commissioner, T.C. Memo. 1987-291. [These conditions are met in this case.]


In addition to the literal statutory requirements, the legislative history indicates that § 108(e)(5) was intended to apply only if the following requirements are also met: (a) The price reduction must result from an agreement between the purchaser and the seller and not, for example, from a discharge as a result of the running of the statute of limitations on enforcement of the obligation; (b) there has been no transfer of the debt by the seller to a third party; and (c) there has been no transfer of the purchased property from the purchaser to a third party. S. Rept. No. 1035, supra; B. Bittker & L. Lokken, supra at ¶¶ 6-40 – 6-41.

These requirements have also been met. The settlement agreement indicates that petitioner and Resorts mutually agreed to reduce the amount of indebtedness in order to amicably resolve their differences and terminate their litigation. In that litigation, Resorts alleged a number of counts and petitioner raised a variety of affirmative defenses. The settlement agreement was the result of direct negotiations between petitioner and Resorts. [footnote omitted].

The second requirement set forth in the legislative history has been met. Resorts did not transfer petitioner’s debt to a third party.

The third requirement has also been met. Petitioner did not transfer the property to a third party. Both parties in their briefs acknowledge that petitioner did transfer the property to Resorts in that the chips were lost to Resorts at the gambling tables. The legislative history, however, indicates that application of § 108(e)(5) is precluded only if the purchaser/taxpayer transfers the property to a “third party.” Resorts was not a third party; Resorts was the seller/creditor.


Respondent[ argues that] ... [a] purchase price adjustment occurs when the dispute involves contract liability for the purchase of an asset.” I am unable to discern any basis or rationale for this argument. Respondent stipulated to, and his brief requests, a finding of fact that property in the form of chips was received in exchange for petitioner’s markers. 1


I would dispose of this case by assuming that there was discharge of indebtedness income. I would then apply § 108(e)(5) to treat the discharge as a purchase price adjustment. This would result in no taxable income. I respectfully dissent.

Chabot, Swift, Williams, and Whalen, JJ., agree with this dissent.

Notes and Questions:

1. What form did Zarin’s consumption take?

  • gambling?
  • losing at gambling?
  • Should it make a difference?

2. Cohen and Ruwe disagreed over whether the essence of gambling chips is property or a service. The majority treated it as the sale of a service. Ruwe treated the chips as property.

  • Is Ruwe’s analogy to a 99-year leasehold in midtown Manhattan sound? Were the chips income-producing property?

3. Articulate the different characterizations of the transactions occurring between Zarin and Resorts International of each of the opinion-writers.

4. What was the holding of Hall as the majority articulated it? What is wrong with it?

5. Notice that the rule that a settlement does not create doi income is that there must be a genuine dispute as to the liability. In this case, the burden of showing that there was not a genuine dispute was on the Commissioner because of the procedural posture (i.e., stipulated facts) of the case.

Zarin v. Commissioner, 916 F.2d 110 (3rd Cir. 1990).

COWEN, Circuit Judge.

David Zarin (“Zarin”) appeals from a decision of the Tax Court holding that he recognized $2,935,000 of income from discharge of indebtedness resulting from his gambling activities, and that he should be taxed on the income. [footnote omitted]. ... After considering the issues raised by this appeal, we will reverse.


[The court recounts the facts.]


The sole issue before this Court is whether the Tax Court correctly held that Zarin had income from discharge of indebtedness. [footnote omitted]. Section 108 and § 61(a)(12) of the Code set forth “the general rule that gross income includes income from the discharge of indebtedness.” I.R.C. § 108(e)(1). The Commissioner argues, and the Tax Court agreed, that pursuant to the Code, Zarin did indeed recognize income from discharge of gambling indebtedness.

Under the Commissioner’s logic, Resorts advanced Zarin $3,435,000 worth of chips, chips being the functional equivalent of cash. At that time, the chips were not treated as income, since Zarin recognized an obligation of repayment. In other words, Resorts made Zarin a tax-free loan. However, a taxpayer does recognize income if a loan owed to another party is cancelled, in whole or in part. I.R.C. §§ 61(a)(12), 108(e). The settlement between Zarin and Resorts, claims the Commissioner, fits neatly into the cancellation of indebtedness provisions in the Code. Zarin owed $3,435,000, paid $500,000, with the difference constituting income. Although initially persuasive, the Commissioner’s position is nonetheless flawed for two reasons.


Initially, we find that §§ 108 and 61(a)(12) are inapplicable to the Zarin/Resorts transaction. Section 61 does not define indebtedness. On the other hand, § 108(d)(1), which repeats and further elaborates on the rule in § 61(a)(12), defines the term as any indebtedness “(A) for which the taxpayer is liable, or (B) subject to which the taxpayer holds property.” I.R.C. § 108(d)(1). In order to bring the taxpayer within the sweep of the discharge of indebtedness rules, then, the IRS must show that one of the two prongs in the § 108(d)(1) test is satisfied. It has not been demonstrated that Zarin satisfies either.

Because the debt Zarin owed to Resorts was unenforceable as a matter of New Jersey state law [footnote omitted], it is clearly not a debt “for which the taxpayer is liable.” I.R.C. § 108(d)(1)(A). Liability implies a legally enforceable obligation to repay, and under New Jersey law, Zarin would have no such obligation.

Zarin did not have a debt subject to which he held property as required by § 108(d)(1)(B). Zarin’s indebtedness arose out of his acquisition of gambling chips. The Tax Court held that gambling chips were not property, but rather, “a medium of exchange within the Resorts casino” and a “substitute for cash.” Alternatively, the Tax Court viewed the chips as nothing more than “the opportunity to gamble and incidental services ...” We agree with the gist of these characterizations, and hold that gambling chips are merely an accounting mechanism to evidence debt.

... Under New Jersey state law, gambling chips were Resorts’ property until transferred to Zarin in exchange for the markers, at which point the chips became “evidence” of indebtedness (and not the property of Zarin).

Even were there no relevant legislative pronouncement on which to rely, simple common sense would lead to the conclusion that chips were not property in Zarin’s hands. Zarin could not do with the chips as he pleased, nor did the chips have any independent economic value beyond the casino. The chips themselves were of little use to Zarin, other than as a means of facilitating gambling. ...

Although the Tax Court found that theoretically, Zarin could have redeemed the chips he received on credit for cash and walked out of the casino, the reality of the situation was quite different. Realistically, before cashing in his chips, Zarin would have been required to pay his outstanding IOUs. New Jersey state law requires casinos to “request patrons to apply any chips or plaques in their possession in reduction of personal checks or Counter Checks exchanged for purposes of gaming prior to exchanging such chips or plaques for cash or prior to departing from the casino area.” N.J. Admin. Code tit. 19k, § 19:45–1.24(s) (1979) (currently N.J. Admin. Code tit. 19k, § 19:45–1.25(o) (1990) (as amended)). Since his debt at all times equalled or exceeded the number of chips he possessed, redemption would have left Zarin with no chips, no cash, and certainly nothing which could have been characterized as property.

Not only were the chips non-property in Zarin’s hands, but upon transfer to Zarin, the chips also ceased to be the property of Resorts. Since the chips were in the possession of another party, Resorts could no longer do with the chips as it pleased, and could no longer control the chips’ use. Generally, at the time of a transfer, the party in possession of the chips can gamble with them, use them for services, cash them in, or walk out of the casino with them as an Atlantic City souvenir. The chips therefore become nothing more than an accounting mechanism, or evidence of a debt, designed to facilitate gambling in casinos where the use of actual money was forbidden. [footnote omitted]. Thus, the chips which Zarin held were not property within the meaning of I.R.C. § 108(d)(1)(B). [footnote omitted].

In short, because Zarin was not liable on the debt he allegedly owed Resorts, and because Zarin did not hold “property” subject to that debt, the cancellation of indebtedness provisions of the Code do not apply to the settlement between Resorts and Zarin. As such, Zarin cannot have income from the discharge of his debt.


Instead of analyzing the transaction at issue as cancelled debt, we believe the proper approach is to view it as disputed debt or contested liability. Under the contested liability doctrine, if a taxpayer, in good faith, disputed the amount of a debt, a subsequent settlement of the dispute would be treated as the amount of debt cognizable for tax purposes. The excess of the original debt over the amount determined to have been due is disregarded for both loss and debt accounting purposes. Thus, if a taxpayer took out a loan for $10,000, refused in good faith to pay the full $10,000 back, and then reached an agreement with the lender that he would pay back only $7000 in full satisfaction of the debt, the transaction would be treated as if the initial loan was $7000. When the taxpayer tenders the $7000 payment, he will have been deemed to have paid the full amount of the initially disputed debt. Accordingly, there is no tax consequence to the taxpayer upon payment.

The seminal “contested liability” case is N. Sobel, Inc. v. Commissioner, 40 B.T.A. 1263 (1939). In Sobel, the taxpayer exchanged a $21,700 note for 100 shares of stock from a bank. In the following year, the taxpayer sued the bank for recision [sic], arguing that the bank loan was violative of state law, and moreover, that the bank had failed to perform certain promises. The parties eventually settled the case in 1935, with the taxpayer agreeing to pay half of the face amount of the note. In the year of the settlement, the taxpayer claimed the amount paid as a loss. The Commissioner denied the loss because it had been sustained five years earlier, and further asserted that the taxpayer recognized income from the discharge of half of his indebtedness.

The Board of Tax Appeals held that since the loss was not fixed until the dispute was settled, the loss was recognized in 1935, the year of the settlement, and the deduction was appropriately taken in that year. Additionally, the Board held that the portion of the note forgiven by the bank “was not the occasion for a freeing of assets and that there was no gain ...” Id. at 1265. Therefore, the taxpayer did not have any income from cancellation of indebtedness.

There is little difference between the present case and Sobel. Zarin incurred a $3,435,000 debt while gambling at Resorts, but in court, disputed liability on the basis of unenforceability. A settlement of $500,000 was eventually agreed upon. It follows from Sobel that the settlement served only to fix the amount of debt. No income was realized or recognized. When Zarin paid the $500,000, any tax consequence dissolved. 2

Only one other court has addressed a case factually similar to the one before us. In United States v. Hall, 307 F.2d 238 (10th Cir. 1962), the taxpayer owed an unenforceable gambling debt alleged to be $225,000. Subsequently, the taxpayer and the creditor settled for $150,000. The taxpayer then transferred cattle valued at $148,110 to his creditor in satisfaction of the settlement agreement. A jury held that the parties fixed the debt at $150,000, and that the taxpayer recognized income from cancellation of indebtedness equal to the difference between the $150,000 and the $148,110 value affixed to the cattle. Arguing that the taxpayer recognized income equal to the difference between $225,000 and $148,000, the Commissioner appealed.

The Tenth Circuit rejected the idea that the taxpayer had any income from cancellation of indebtedness. Noting that the gambling debt was unenforceable, the Tenth Circuit said, “The cold fact is that taxpayer suffered a substantial loss from gambling, the amount of which was determined by the transfer.” Id. at 241. In effect, the Court held that because the debt was unenforceable, the amount of the loss and resulting debt cognizable for tax purposes were fixed by the settlement at $148,110. Thus, the Tenth Circuit lent its endorsement to the contested liability doctrine in a factual situation strikingly similar to the one at issue. 3

The Commissioner argues that Sobel and the contested liability doctrine only apply when there is an unliquidated debt; that is, a debt for which the amount cannot be determined. SeeColonial Sav. Ass’n v. Commissioner, 85 T.C. 855, 862–863 (1985) (Sobel stands for the proposition that “there must be a liquidated debt”), aff’d, 854 F.2d 1001 (7th Cir.1988). See alsoN. Sobel, Inc. v. Commissioner, 40 B.T.A. at 1265 (there was a dispute as to “liability and the amount” of the debt). Since Zarin contested his liability based on the unenforceability of the entire debt, and did not dispute the amount of the debt, the Commissioner would have us adopt the reasoning of the Tax Court, which found that Zarin’s debt was liquidated, therefore barring the application of Sobel and the contested liability doctrine. Zarin, 92 T.C. at 1095 (Zarin’s debt “was a liquidated amount” and “[t]here is no dispute about the amount [received].”).

We reject the Tax Court’s rationale. When a debt is unenforceable, it follows that the amount of the debt, and not just the liability thereon, is in dispute. Although a debt may be unenforceable, there still could be some value attached to its worth. This is especially so with regards to gambling debts. In most states, gambling debts are unenforceable, and have “but slight potential ...” United States v. Hall, 307 F.2d 238, 241 (10th Cir.1962). Nevertheless, they are often collected, at least in part. For example, Resorts is not a charity; it would not have extended illegal credit to Zarin and others if it did not have some hope of collecting debts incurred pursuant to the grant of credit.

Moreover, the debt is frequently incurred to acquire gambling chips, and not money. Although casinos attach a dollar value to each chip, that value, unlike money’s, is not beyond dispute, particularly given the illegality of gambling debts in the first place. This proposition is supported by the facts of the present case. Resorts gave Zarin $3.4 million dollars of chips in exchange for markers evidencing Zarin’s debt. If indeed the only issue was the enforceabilty of the entire debt, there would have been no settlement. Zarin would have owed all or nothing. Instead, the parties attached a value to the debt considerably lower than its face value. In other words, the parties agreed that given the circumstances surrounding Zarin’s gambling spree, the chips he acquired might not have been worth $3.4 million dollars, but were worth something. Such a debt cannot be called liquidated, since its exact amount was not fixed until settlement.

To summarize, the transaction between Zarin and Resorts can best be characterized as a disputed debt, or contested liability. Zarin owed an unenforceable debt of $3,435,000 to Resorts. After Zarin in good faith disputed his obligation to repay the debt, the parties settled for $500,000, which Zarin paid. That $500,000 settlement fixed the amount of loss and the amount of debt cognizable for tax purposes. Since Zarin was deemed to have owed $500,000, and since he paid Resorts $500,000, no adverse tax consequences attached to Zarin as a result. [footnote omitted].


In conclusion, we hold that Zarin did not have any income from cancellation of indebtedness for two reasons. First, the Code provisions covering discharge of debt are inapplicable since the definitional requirement in I.R.C. § 108(d)(1) was not met. Second, the settlement of Zarin’s gambling debts was a contested liability. We reverse the decision of the Tax Court and remand with instructions to enter judgment that Zarin realized no income by reason of his settlement with Resorts.

STAPLETON, Circuit Judge, dissenting.

[C.J. Stapleton wrote an opinion agreeing with the Tax Court’s majority opinion.]

Notes and Questions:

1. Any other person would have had to pay $3.4M for 3.4M chips. How can the majority conclude that their value is in dispute?

2. Zarin’s gambling attracted crowds, which was good for the business of Resorts International. Could the chips be regarded as compensation?

  • Or does it go too far to argue that the “dominant purpose” of Resorts International in giving chips to Zarin was to benefit itself by attracting such crowds. Cf.Gotcher.

3. Does a compulsive gambler such as Mr. Zarin realize an accession to wealth or “value” by gambling more?

4. Taxpayer argued that “discharge of his gambling debt was income from gambling against which he may offset his losses.”

  • This does not treat the loan and use of the chips as separate transactions.

5. Should borrowing from a casino to purchase the casino’s chips be different than borrowing from a furniture store to buy the store’s furniture or from a car dealership to buy one of the dealership’s cars?

6. Articulate the policies behind state laws that make debts unenforceable? Do any of these policies suggest anything about whether there was an accession to wealth?

  • unconscionable contracts are not enforceable because of unequal bargaining power;
  • illegal contracts are not enforceable because the state will not lend its assistance to enforce an illegal bargain;
  • some contracts are unenforceable because the state deems normal presumptions about rationality and the ability to know what is beneficial to oneself inapplicable in certain circumstances, e.g., contract with a minor or incompetent.

7. The majority relies heavily on § 108(d)(1). Why? Is this provision applicable to the case at all?

8. What is left of the liquidated debt doctrine?

  • What if the debtor reaches a compromise with the creditor, but never actually disputed that s/he/it owed the creditor a sum certain? SeeMelvin v. Commissioner, T.C. Memo 2009-199, 2009 WL 2869816 (2009); Rood v. Commissioner, TC Memo 1996-248, 1996 WL 280899 (1996) (gambling debt).

9. You should be aware of the rule of § 108(e)(5) for purchase price reductions. How does that rule apply when the seller of a service lends money to a customer to purchase the service?

10. Consider:

  • 10a. Taxpayer engaged the services of Attorney and incurred a bill of $1000. The fmv of taxpayer’s assets is $10,000, and taxpayer has $5000 of cash. Taxpayer has liabilities of $25,000. Taxpayer was most interested in not parting with any cash and so entered an agreement to do 80 hours of filing and word processing for Attorney. After taxpayer performed these services, Attorney told taxpayer that “you owe me nothing.” Now taxpayer’s liabilities are $24,000, and she has assets with fmv = $10,000 plus $5000 cash. How much doi income must Taxpayer report?
    • SeeCanton v. United States, 226 F.2d 313, 317-18 (8th Cir. 1955), cert. denied, 350 U.S. 965 (1956).
  • 10b. Taxpayer borrowed $25,000 from her uncle to pay for her third year of law school at one of America’s “Best Value Law Schools” (according to preLaw Magazine). Taxpayer and her uncle formalized the arrangement in writing, taxpayer to pay 6% interest on her declining balance once she began making payments to her uncle after law school. At Taxpayer’s commencement day party, her uncle announced to her that “I forgive the loan I made to you. You are free and clear as far as I’m concerned.” At the time, Taxpayer’s liabilities (including the $25,000 owed to her uncle) did not exceed the fmv of her assets. How much doi income must taxpayer report?
  • 10c. Taxpayer, a highly skilled craftsman, entered into a contract to produce a custom-made table for Customer’s dining room. Customer paid Taxpayer $2000 on the day they entered the agreement with a promise to pay $2000 more on delivery. Taxpayer was to deliver the table six months after signing. Taxpayer never got around to producing the table. At first, Customer patiently waited past the contractual deadline for the table, but finally sued for a refund of the $2000. Customer had waited more than 6 years to bring the suit, so it was dismissed as not having been brought within the limitation period.
    • True or false: Taxpayer does not have doi income because the debt is unenforceable.
    • See, e.g., Securities Co. v. United States, 85 F. Supp. 532, (S.D.N.Y. 1948).
  • 10d. Taxpayer took his automobile to Repair Shop to have some routine maintenance work done. Repair Shop promised to do the work for $300. When Taxpayer returned to pick up his automobile, he told Repair Shop that he only had $250 in cash, but would get the rest by tomorrow. Repair Shop manager responded by saying, “Gimme the $250 and forget the rest.” Taxpayer is solvent throughout. How much doi income must Taxpayer report?
  • 10e. Bank is a debtor to its depositors. The agreement between Bank and depositors provides for a penalty on early withdrawals of certificates of deposit by depositors. The penalty is assessed at the time of withdrawal by simply reducing the interest rate that the Bank had previously promised to pay depositor from 3% to 1.75%. Hence Bank pays depositor less than it had promised to pay depositor at the time the certificate of deposit was purchased. May Bank report the early withdrawal penalties that it “collects” as doi income?
    • SeeUnited States v. Centennial Savings Bank FSB, 499 U.S. 573 (1991).