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30 July, 2015 - 10:44

Now suppose that instead of accepting money in exchange for property or services, taxpayer accepts services for services, property for property, property for services, or services for property.

Rev. Rul. 79-24




Situation 1. In return for personal legal services performed by a lawyer for a housepainter, the housepainter painted the lawyer’s personal residence. Both the lawyer and the housepainter are members of a barter club, an organization that annually furnishes its members a directory of members and the services they provide. All the members of the club are professionals or trades persons. Members contact other members directly and negotiate the value of the services to be performed.

Situation 2. An individual who owned an apartment building received a work of art created by a professional artist in return for the rent-free use of an apartment for six months by the artist.


The applicable sections of the Internal Revenue Code of 1954 and the Income Tax Regulations thereunder are 61(a) and 1.61-2, relating to compensation for services.

Section 1.61-2(d)(1) of the regulations provides that if services are paid for other than in money, the fair market value of the property or services taken in payment must be included in income. If the services were rendered at a stipulated price, such price will be presumed to be the fair market value of the compensation received in the absence of evidence to the contrary.


Situation 1. The fair market value of the services received by the lawyer and the housepainter are includible in their gross incomes under section 61 of the Code.

Situation 2. The fair market value of the work of art and the six months fair rental value of the apartment are includible in the gross incomes of the apartment-owner and the artist under section 61 of the Code.

Notes and Questions:

1. Each party to a barter transaction gave up something and received something. If the fmv of what a party gives up is different from the value of what s/he received, it is the value of what taxpayer receives that matters. Read the Law and Holdings carefully. Section 1001(a) also requires this. This implies that two parties to a transaction may realize different amounts.

  • Why would it be wrong to measure the amount realized by what taxpayer gave up in a barter transaction? Consider –

2. (continuing note 1): Let’s say that the fmv of the painting was $6000. The fmv of the rent was $7000. We say that we tax income once – but we don’t tax it more than once. In the following questions, keep track of what the taxpayer has and on how much income s/he has paid income tax.

  • What should be the apartment-owner’s taxable gain from exchanging rent for the painting?
  • What should be the apartment-owner’s basis in the painting s/he received?
  • What is the apartment-owner’s taxable gain if s/he sells the painting immediately upon receipt for its fmv?

3. Sections 61(a) lists several forms that gross income may take. The Code does not treat all forms of gross income the same. Different rates of tax may apply to different forms of gross income. Or, the Code might not – in certain circumstances – tax some forms of gross income at all. Thus there are reasons that we should not (always) treat gross income as a big hodge-podge of money. In the following case, the court distinguishes between a gain that taxpayer derived from dealings in property from gains that taxpayer derived from a discharge of his/her debt. Determine what was at issue in Gehl, what the parties argued, and why it mattered.

United States v. Gehl, 50 F.3d 12 (unpublished) , 1995 WL 115589 (CA8), cert. denied, 516 U.S. 899 (1995)



BOGUE, Senior District Judge.

Taxpayers James and Laura Gehl (taxpayers) appeal from an adverse decision in the United States Tax Court finding deficiencies in their income taxes for 1988 and 1989. For the reasons stated below, we affirm.


Prior to the events in issue, the taxpayers borrowed money from the Production Credit Association of the Midlands (PCA). Mortgages on a 218 acre family farm were given to the PCA to secure the recourse loan. As of December 30, 1988, the taxpayers were insolvent and unable to make the payments on the loan, which had an outstanding balance of $152,260. The transactions resolving the situation between the PCA and the taxpayers form the basis of the current dispute.

Pursuant to a restructuring agreement, taxpayers, by deed in lieu of foreclosure, conveyed 60 acres of the farm land to the PCA on December 30, 1988, in partial satisfaction of the debt. The taxpayers basis in the 60 acres was $14,384 and they were credited with $39,000 towards their loan, the fair market value of the land. On January 4, 1989, taxpayers conveyed, also by deed in lieu of foreclosure, an additional 141 acres of the mortgaged farm land to the PCA in partial satisfaction of the debt. Taxpayers basis in the 141 acres was $32,000 and the land had a fair market value of $77,725. Taxpayers also paid $6,123 in cash to the PCA to be applied to their loan. The PCA thereupon forgave the remaining balance of the taxpayers’ loan, $29,412. Taxpayers were not debtors under the Bankruptcy Code during 1988 or 1989, but were insolvent both before and after the transfers and discharge of indebtedness.

After an audit, the Commissioner of Revenue (Commissioner) determined tax deficiencies of $6,887 for 1988 and $13,643 for 1989 on the theory that the taxpayers had realized a gain on the disposition of their farmland in the amount by which the fair market value of the land exceeded their basis in the same at the time of the transfer (gains of $24,616 on the 60 acre conveyance and $45,645 on the conveyance of the 141 acre conveyance). The taxpayers petitioned the Tax Court for redetermination of their tax liability for the years in question contending that any gain they realized upon the transfer of their property should not be treated as income because they remained insolvent after the transactions.

The Tax Court found in favor of the Commissioner. In doing so, the court “bifurcated” its analysis of the transactions, considering the transfers of land and the discharge of the remaining debt separately. The taxpayers argued that the entire set of transactions should be considered together and treated as income from the discharge of indebtedness. As such, any income derived would be excluded as the taxpayers remained insolvent throughout the process. 26 U.S.C. § 108(a)(1). As to the discharge of indebtedness, the court determined that because the taxpayers remained insolvent after their debt was discharged, no income would be attributable to that portion of the restructuring agreement.

On the other hand, the court found the taxpayers to have received a gain includable as gross income from the transfers of the farm land (determined by the excess of the respective fair market values over the respective basis). This gain was found to exist despite the continued insolvency in that the gain from the sale or disposition of land is not income from the discharge of indebtedness. The taxpayers appealed.


We review the Tax Court’s interpretation of law de novo. [citation omitted] Discussion of this case properly begins with an examination of I.R.C. § 61 which defines gross income under the Code. In order to satisfy their obligation to the PCA, the taxpayers agreed to participate in an arrangement which could potentially give rise to gross income in two distinct ways. 1 I.R.C. § 61(a)(3) provides that for tax purposes, gross income includes “gains derived from dealings in property.” Likewise, income is realized pursuant to I.R.C. § 61(a)(12) for “income from discharge of indebtedness.”

There can be little dispute with respect to Tax Court’s treatment of the $29,412 portion of the debt forgiven subsequent to the transfers of land and cash. The Commissioner stipulated that under I.R.C. § 108(a)(1)(B), 2 the so-called “insolvency exception,” the taxpayers did not have to include as income any part of the indebtedness that the PCA forgave. The $29,412 represented the amount by which the land and cash transfers fell short of satisfying the outstanding debt. The Tax Court properly found this amount to be excluded.

Further, the Tax Court’s treatment of the land transfers, irrespective of other portions of the restructuring agreement, cannot be criticized. Section 1001 governs the determination of gains and losses on the sale or exchange of property. Section 1001(a) provides that “the gain from the sale or other disposition of property shall be the excess of the amount realized therefrom over the adjusted basis ...” The taxpayers contend that because the disposition of their land was compulsory and that they had no discretion with respect to the proceeds, the deeds in lieu of foreclosure are not “sales” for the purposes of § 1001. We disagree. A transfer of property by deed in lieu of foreclosure constitutes a “sale or exchange” for federal income tax purposes. Allan v. Commissioner of Revenue, 86 F.C. 655, 659-60, aff’d. 856 F.2d 1169, 1172 (8th Cir. 1988) (citations omitted). The taxpayers’ transfers by deeds in lieu of foreclosure of their land to the PCA in partial satisfaction of the recourse debt were properly considered sales or exchanges for purposes of § 1001.

Taxpayers also appear to contend that under their circumstances, there was no “amount realized” under I.R.C. §§ 1001(a-b) and thus, no “gain” from the land transfers as the term is used in I.R.C. § 61(a)(3). Again, we must disagree. The amount realized from a sale or other disposition of property includes the amount of liabilities from which the transferor is discharged as a result of the sale or disposition. Treas. Reg. § 1.1001-2(a)(1). Simply because the taxpayers did not actually receive any cash proceeds from the land transfers does not mean there was no amount realized. Via the land transfers, they were given credit toward an outstanding recourse loan to the extent of the land’s fair market value. This loan had to be paid back. It is clear that the transfers of land employed to satisfy that end must be treated the same as receiving money from a sale. In this case the land transfers were properly considered “gains derived from dealings in property” to the extent the fair market value in the land exceeded the taxpayers’ basis in said land. I.R.C. §§ 61(a)(3), 1001(a).

The taxpayers’ primary and fundamental argument in this case is the Tax Court’s refusal to treat the entire settlement of their loan, including the land transfers, as coming within the scope of I.R.C. § 108. As previously stated, § 108 and attending Treasury Regulations act to exclude income from the discharge of indebtedness where the taxpayer thereafter remains insolvent. The taxpayers take issue with the bifurcated analysis conducted by the Tax Court and contend that, because of their continued insolvency, § 108 acts to exclude any income derived from the various transactions absolving their debt to the PCA.

As an initial consideration, the taxpayers read the insolvency exception of § 108 too broadly. I.R.C. § 61 provides an [sic] non-exclusive list of fifteen items which give rise to income for tax purposes, including income from discharge of indebtedness. Of the numerous potential sources of income, § 108 grants an exclusion to insolvent taxpayers only as to income from the discharge of indebtedness. It does not preclude the realization of income from other activities or sources.

While § 108 clearly applied to a portion of the taxpayers’ loan restructuring agreement, the land transfers were outside the section’s scope and were properly treated independently. [citation omitted]

There is ample authority to support Tax Court’s bifurcated analysis and substantive decision rendered with respect to the present land transfers. The Commissioner relies heavily on Treas. Reg. § 1.1001-2 and example 8 contained therein, which provides:

(a) Inclusion in amount realized.-(1) * * *

(2) Discharge of indebtedness. The amount realized on a sale or other disposition of property that secures a recourse liability does not include amounts that are (or would be if realized and recognized) income from the discharge of indebtedness under section 61(a)(12). * * *

(c) Examples * * *

Example (8). In 1980, F transfers to a creditor an asset with a fair market value of $6,000 and the creditor discharges $7,500 of indebtedness for which F is personally liable. The amount realized on the disposition of the asset is its fair market value ($6,000). In addition, F has income from the discharge of indebtedness of $1,500 ($7,500-$6,000).

We believe the regulation is controlling and serves ... to provide support for the decision rendered by the Tax Court. 3


For the reasons stated, we affirm the decision of the Tax Court.

Notes and Questions:

1. Section 61(a) presents a comprehensive definition of “gross income.” However, the fifteen enumerated types or sources of income are not necessarily subject to the same rate of tax, and other provisions may exclude certain types of income from income subject to tax altogether. Naturally, taxpayers would prefer to characterize their income as of a type or from a source not subject to income tax. Under certain circumstances, § 108 excludes discharge of indebtedness income from income tax. See chapter 3 infra. For these reasons, the type or source of income can matter greatly.

2. Taxpayer may transfer a piece of appreciated (or depreciated) property to another to satisfy an obligation or make a payment. Taxpayer might alternatively have sold the property for its fmv. The gain derived from the sale would be subject to income tax. Taxpayer could then pay the cash s/he realized to the obligee or payee. The result should be no different if taxpayer simply transfers the property directly to the obligee or payee. The court recognized this when it stated:

Giving property as payment

The use of appreciated (or depreciated) property to pay for something is a recognition event. Why?

It is clear that the transfers of land employed to satisfy [an obligation or make a payment] must be treated the same as receiving money from a sale. In this case the land transfers were properly considered “gains derived from dealings in property” to the extent the fair market value in the land exceeded the taxpayers’ basis in said land. I.R.C. §§ 61(a)(3), 1001(a).

3. Notice that if taxpayers’ views in Gehl had prevailed, they would have realized the benefit of the appreciation in the value of their property (i.e., an accession to wealth) without that accession ever being subject to tax – contrary to the first of the three principles stated chapter 1 that you should know by now.

4. Read Reg. § 1.61-2(d)(1 and 2(i)) and § 83(a).

  • Taxpayer performed accounting services over the course of one year for Baxter Realty. The fmv of these services was $15,000. Taxpayer billed Baxter Realty for $15,000. Unfortunately, Baxter Realty was short on cash and long on inventory, which included a tract of land known as Blackacre. The fmv of Blackacre was $20,000. Its cost to Baxter Realty was $11,000. Taxpayer agreed to accept Blackacre as full payment for the bill. Six months later, Taxpayer sold Blackacre to an unrelated third person for $22,000.
  1. How much must Taxpayer report as gross income from the receipt of Blackacre as payment for his/her services?
  2. How much must Taxpayer report as gross income derived from the sale of Blackacre?
  3. How much must Baxter Realty report as gross income derived from its dealings in Blackacre?