OPINION
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 determined that petitioners had income in 1980 from larceny by trick and deception. Respondent has abandoned that position. All of the other issues raised in the notice of deficiency have been settled. In his answer, respondent asserted that petitioners realized additional 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.
Unless otherwise indicated, all Rule references are to the Tax Court Rules of Practice and Procedure, and all section references are to the Internal Revenue Code, as amended and in effect for the years in issue. All of the facts have been stipulated. The facts set forth in the stipulation are incorporated as our findings by this reference.
Petitioners resided in Atlantic City, New Jersey, at the time they filed their petition in this case. They timely filed joint Federal income tax returns for 1980 and 1981 with the Internal Revenue Service Center, Holtsville, New York.
David Zarin (petitioner) was a professional engineer involved in the development, construction, and management of multi-family housing and nursing home facilities. In 1978, 2 years after New Jersey passed the Casino Control Act, N.J. Stat. Ann. sec. 5:12-101 et seq. (West 1988), legalizing casino gambling in Atlantic City, petitioner began developing various housing projects in Atlantic City, New Jersey.
Petitioner occasionally stayed at Resorts International Hotel, Inc. (Resorts), in Atlantic City in connection with his construction activities. Prior to 1978, petitioner had gambled on credit both in Las Vegas, Nevada, and in the Bahamas. 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.
Burden of Proof
We are faced first with a dispute as to the burden of proof. Petitioner argues that, to the extent that factual issues are involved, the burden of proof is on respondent with respect to the discharge of indebtedness issue because it constitutes an increase in the deficiency for 1981, and because it constitutes a new matter. Respondent contends otherwise. We agree with petitioner.
Rule 142(a) provides that the burden of proof is on petitioner, “except that, in respect of any new matter, increases in deficiency, and affirmative defenses, pleaded in his answer, it shall be upon the respondent.” A new position taken by respondent is not necessarily a “new matter” if it merely clarifies or develops respondent’s original determination without requiring the presentation of different evidence, being inconsistent with respondent’s original determination, or increasing the amount of the deficiency. Achiro v. Commissioner, 77 T.C. 881, 889-891 (1981).
The ground on which the increased deficiency for 1981 asserted in the answer is based, that petitioner had income from the discharge of indebtedness, clearly requires different evidence from the ground originally asserted in the notice of deficiency, that the income was received in 1980 from larceny by trick and deception. Respondent’s new position raised in his amended answer, therefore, constitutes a new matter, so that respondent bears the burden of proof. See Carland, Inc. v. Commissioner, 90 T.C. 505, 542 (1988); Estate of Falese v. Commissioner, 58 T.C. 895, 899 (1972). That the case is fully stipulated does not change the burden of proof. Rule 122(b). In view of this result, we need not consider whether “increase in deficiency” for purposes of Rule 142(a) is determined with reference to each year in issue, as petitioners contend, or on an aggregate basis for all years, as respondent contends. In this regard, we note that for most purposes, the Internal Revenue Code treats individual years as distinct. See, e.g., sec. 6501 (statute of limitations); sec. 170(b) (charitable deduction limitations). At least for jurisdictional purposes, each year must be separately considered. See Stamm International Corp. v. Commissioner, 84 T.C. 248, 252-255 (1985).
Income From the Discharge of Indebtedness
In general, gross income includes all income from whatever source derived, including income from the discharge of indebtedness. Sec. 61(a)(12). Not all discharges of indebtedness, however, result in income. See sec. 1.61-12(a), Income Tax Regs., “The discharge of indebtedness, in whole or in part, may result in the realization of income.” (Emphasis supplied.) 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. See United States v. Kirby Lumber Co., 284 U.S. 1 (1931).
Respondent contends that the difference between the $3,435,000 in personal checks and markers that were returned by the banks as drawn against insufficient funds and the $500,000 paid by petitioner in settlement of the Resorts suit constitutes income from the discharge of indebtedness. Petitioner argues that the settlement agreement between Resorts and himself did not give rise to such 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. sec. 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.
Because he bears the burden of proof, respondent can prevail only if the stipulated facts support a conclusion that a discharge of indebtedness occurred that resulted in taxable income under the law. Respondent has not proven facts from which we can conclude that the debts were legally enforceable. We must decide, therefore, whether legal enforceability is a prerequisite to recognition of income in this case.
Enforceability
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. See Vukasovich, Inc. v. Commissioner, 790 F.2d 1409 (9th Cir. 1986), revg. a Memorandum Opinion of this Court, discussed at length, infra.
In Commissioner v. Tufts, 461 U.S. 300 (1983), the Supreme Court examined the economic realities associated with the cancellation of a nonrecourse obligation. Although a nonrecourse mortgage does not personally obligate the borrower or create a right against the borrower’s general assets, the Supreme Court recognized the necessity of treating nonrecourse obligations as enforceable loans both when the obligations are made and when they are discharged. Thus, upon sale of mortgaged property, the seller-original borrower must include the amount of the nonrecourse mortgage assumed by the purchaser in calculating the amount realized from sale, even when the fair market value of the property is less than the outstanding amount of the nonrecourse obligation. Indicating a concern with symmetry, the Supreme Court observed in Tufts:
The rationale for this treatment is that the original inclusion of the amount of the mortgage in basis rested on the assumption that the mortgagor incurred an obligation to repay. Moreover, this treatment balances the fact that the mortgagor originally received the proceeds on the nonrecourse loan tax-free on the same assumption. Unless the outstanding amount of the mortgage is deemed to be realized, the mortgagor effectively will have received untaxed income at the time the loan was extended and will have received an unwarranted increase in the basis of his property. * * * [461 U.S. at 309-310.]
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. Compare United 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.
In Vukasovich, Inc. v. Commissioner, supra, the taxpayer borrowed approximately $2 million to finance a cattle feeding venture. The cattle were subsequently sold for less than the full amount of the taxpayer’s liability, and he refused to pay the balance owed. The parties to the agreement settled their claims for less than the full amount, and the Commissioner asserted that the taxpayer realized income from cancellation of the debt. The Court of Appeals for the Ninth Circuit concluded that the principles of Kerbaugh-Empire had been rejected by the Supreme Court in the subsequent cases cited above, even though the 1926 case had not been specifically overruled. 790 F.2d at 1415-1416. Because we find the reasoning of the Court of Appeals for the Ninth Circuit persuasive, we quote it at length as follows:
Kerbaugh-Empire depended on two premises. First, it held that the cancellation of indebtedness was not income, because income was “gain derived from capital, from labor, or from both combined.” Id. at 174, 46 S.Ct. at 451. Second, it held that a unitary transactional approach to measuring income made it impermissible to look at receipts in a -given year without determining whether they were offsets of losses in another year because while “the [loan] in question is cash gain[,] * * * the borrowed money was lost.” Id. at 175, 46 S.Ct. at 451. The Commissioner relies primarily on United States v. Kirby Lumber Co., 284 U.S. 1, 52 S.Ct. 4, 76 L.Ed. 131 (1931); Burnet v. Sanford & Brooks Co., 282 U.S. 359, 51 S.Ct. 150, 75 L.Ed. 383 (1931); Commissioner v. Glenshaw Glass Co., 348 U.S. 426, 75 S.Ct. 473, 99 L.Ed. 483 (1955); and Commissioner v. Tufts, 461 U.S. 300, 103 S.Ct. 1826, 75 L.Ed.2d 863 (1983), to show that these premises are no longer accepted.
Ordinarily the cancellation of indebtedness is gross income. Kerbaugh-Empire’s reluctance to tax income from the cancellation of indebtedness stemmed in part from Eisner v. Macomber, 252 U.S. 189, 207, 40 S.Ct. 189, 193, 64 L.Ed. 521 (1920) (quoting Doyle v. Mitchell Brothers Co., 247 U.S. 179, 185, 38 S.Ct. 467, 469, 62 L.Ed. 1054 (1918)), which defined income for the purposes of the Sixteenth Amendment as “ ‘the gain from capital, from labor, or from both combined.’ ” Because the cancellation of indebtedness could not be attributed to a gain from capital or labor, the result in Kerbaugh-Empire followed from the then-existing interpretation of the Sixteenth Amendment. See Kerbaugh-Empire, 271 U.S. at 174-75, 46 S.Ct. at 451. Since then, Glenshaw Glass has defined gross income in terms of “accessions to wealth, clearly realized, and over which the taxpayers have complete dominion.” 348 U.S. at 431, 75 S.Ct. at 476. * * *
* * * In Kirby Lumber, a company sold its bonds and later repurchased them for less than the sale price. The Supreme Court held that the taxpayer achieved a taxable gain through the freeing of its assets from the obligation to repurchase the bonds at the price of issue, and therefore realized income. Kirby Lumber shows that an increase in net worth from the discharge of indebtedness for less than the amount loaned is income, at least to the extent that it frees up the debtor’s assets. Thus, the taxpayer’s gain on the loan must be counted as income in the absence of something exceptional about the underlying transaction.
In Tufts, the taxpayer sold property subject to a nonrecourse mortgage. The property was worth less than the amount of the mortgage. Because the mortgage was nonrecourse, it could not be said, as it had been in Kirby Lumber, that the removal of the debt freed or enhanced the taxpayer’s assets. Nonetheless, the Supreme Court ruled that the Commissioner could treat the difference between the initial amount of the loan and the amount repaid as income from the sale of the property.
The Commissioner argues that Tufts supports a general rule making irrelevant whether assets were freed because the Court focuses on the receipt of money unbalanced by an obligation to repay, rather than on the nonrecourse nature of the obligation or on the taking of deductions. See 461 U.S. at 310 n. 8, 103 S.Ct. at 1832 n. 8. The Commissioner’s argument is supported by some authority, see Bittker & Thompson, Jr., Income From the Discharge of Indebtedness: The Progeny of United States v. Kirby Lumber Co., 66 Cal.L.Rev. 1159, 1165-66, 1176, 1182 (1978).
However, requiring some benefit to the taxpayer from the transaction creating the indebtedness explains such cases as Commissioner v. Rail Joint Co., 61 F.2d 751 (2d Cir. 1932), which held that no gain was realized when a corporation issued bonds as dividends and repurchased them at less than their face value, and B.F. Avery & Sons, Inc. v. Commissioner, 26 B.T.A. 1393 (1932), where a claim that cancellation of indebtedness should be treated as a reduction in the purchase price was analyzed according to whether prior tax benefits had resulted from the higher purchase price. See generally J. Sneed, The Configurations of Gross Income 322-27 (1967).
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. Unlike Tufts, Rail Joint may not have provided an economic benefit to the taxpayer from the transaction, and the statement in Tufts may not apply to such cases. Because Vukasovich received money in exchange for the indebtedness, we need not determine the limits of Tufts. We decline to address the issue. [790 F.2d at 1414-1415.]
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, section 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). Under the “all events test,” only the fact of liability and the amount owed need be fixed as of the end of a taxable year in order to give rise to a deduction by an accrual basis taxpayer; legal liability is not required. Burlington Northern Railroad v. Commissioner, 82 T.C. 143, 151 (1984). Unenforceability of an underlying gambling debt is not a bar to the recognition of income by an accrual method gambling casino. Flamingo Resort, Inc. v. United States, 664 F.2d 1387 (9th Cir. 1982). Enforceability may affect the timing of recognition of income; other factors fix the amount to be recognized. Cf. United States v. Hughes Properties, 476 U.S. 593, 602-604 (1986).
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 Association v. Commissioner, 85 T.C. 855, 862-863 (1985), affd. 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. The cases cited by petitioner merely require that there be a liquidated debt, i.e., one in which the amount has been determined. See Colonial Savings Association v. Commissioner, 85 T.C. at 863; N. Sobel, Inc. v. Commissioner, 40 B.T.A. at 1265. 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
In several different ways, petitioner argues that any income from discharge of his gambling debt was income from gambling against which he may offset his losses; thus, he argues, he had no net income from gambling.
Section 165(d) provides that “Losses from wagering transactions shall be allowed only to the extent of the gains from such transactions.” Neither section 165(d) nor section 1.165-10, Income Tax Regs., defines what items are included as gains from wagering transactions. The regulation, however, provides that wagering losses “shall be allowed as a deduction but only to the extent of the gains during the taxable years from such transactions.” (Emphasis supplied.) Petitioner incurred gambling losses in 1980, but his gain from the discharge of his gambling debts occurred in 1981. That gain is separate and apart from the losses he incurred from his actual wagering transactions. We have no evidence of his actual wagering gains and losses for either year. If we were to effectively allow petitioner to deduct the value of the lost chips from the value of the discharged debt, we would ignore annual accounting and undermine section 165(d) by in effect allowing gambling losses in excess of gambling winnings.
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. 96-1035 (1980), 1980-2 C.B. 620, 628. Section 108(e)(5) applies to transactions occurring after December 31, 1980. S. Rept. 96-1035, supra, 1980-2 C.B. at 622-623. The provisions of this section are not elective.
For a reduction in the amount of a debt to be treated as a purchase price adjustment under section 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 section 108(e)(5), the debt reduction would otherwise have resulted in discharge of indebtedness income. Sec. 108(e)(5); 1 B. Bittker & L. Lokken, Federal Taxation of Income, Estates and Gifts, pp. 6-40 - 6-41 (2d ed. 1989); see also Sutphin 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.
In addition to the literal statutory requirements, the legislative history indicates that section 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 bar 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. 96-1035 (1980), 1980-2 C.B. 620, 628; 1 B. Bittker & L. Lokken, supra at 6-40 - 6-41.
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 section 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 on the stipulated facts that petitioner received full value for his debt. In arguing that he did not, however, petitioner asserts:
In exchange for his promise to repay Resorts, Petitioner received chips. * * * These chips may be used only to gamble in the Resorts Casino. Furthermore, the record is void of any assertion that Petitioner’s life-style equates to cognizable consideration.
Petitioner purchased the opportunity to gamble as he received chips in exchange for his markers. He did not even use the chips to pay for food, beverage, entertainment or hotel/living accommodations while in Atlantic City, as these services were provided to Petitioner by Resorts on a complimentary basis. Upon receipt of the chips, Petitioner immediately proceeded to gamble with these chips. * * *
The corollary to a borrower’s receipt of zero cognizable consideration, is that a lender parts with nothing of value. In the instant case petitioner received nothing and Resorts gave up nothing. * * * * * * * * * *
* * * Furthermore, 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. * * *
In support of an argument that “A debt incurred by a casino patron to acquire gambling opportunity is not a typical commercial debt and as such should not be treated as a typical commercial debt,” petitioner argues:
In addition to the character of the gambling debt being different than a typical commercial debt, the Petitioner-Resorts gambling transactions did not occur in the normal commercial debtor-creditor relationship in which a debtor borrows funds from a creditor and uses the loan proceeds elsewhere or uses the funds as purchase money for which he acquires something of value. Petitioner received gambling chips from Resorts. He then promptly gambled and lost the entire amount of chips at Resorts. Petitioner received no consideration from Resorts and was, in fact, $500,000 poorer from his transactions, while Resorts parted with nothing.
In support of an argument that “Tax is not imposed on an opportunity to realize income,” petitioner asserts:
Petitioner’s receipt of chips on credit represented an opportunity to gamble. The chips, the value of which are not equal to the value of the markers given, cannot be negotiated outside of the issuing casino and may be retained by the casino in satisfaction of the markers if presented by the patron for redemption. Accordingly, the only value represented by the chips is their potential income earning power. * * *
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 section 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. Recognition that foreign currency has, for some purposes, been held to be “property” that qualifies as a capital asset is not in point here. See National-Standard Co. v. Commissioner, 80 T.C. 551 (1983), affd. 749 F.2d 369 (6th Cir. 1984). Foreign currency fluctuates in United States dollar value, whereas the chips in question do not.
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 section 108(e)(5).
We have considered the other arguments of the parties and find them unnecessary to disposition of this case or unpersuasive. To reflect concessions,
Decision will be entered under Rule 155.
Reviewed by the Court.
Nims, Parker, Kórner, Shields, Hamblen, Clapp, Gerber, Wright, Parr, and Colvin, JJ., agree with the majority opinion.