dissenting: The majority concludes that petitioner David Zarin had income from discharge of gambling indebtedness in 1981. I would conclude otherwise.
The facts in this case are relatively simple. Petitioner was a compulsive gambler whose addiction Resorts fueled through the extension of credit. By April 1980, Resorts had advanced $3,435,000 to petitioner. Because petitioner had not repaid this amount, on November 18, 1980, Resorts instituted a State court proceeding seeking collection of the $3,435,000. On September 28, 1981, petitioner settled this claim by agreeing to pay Resorts $500,000, which he did.
The New Jersey Superior Court has ruled that debt arising from credit extended against checks to facilitate gambling in a casino is unenforceable if the check is given in violation of New Jersey’s Casino Control Act. Resorts International Hotel, Inc. v. Salomone, 178 N.J. Super. 598, 429 A.2d 1078 (App. Div. 1981). Similarly, in a suit in which petitioner herein was a defendant, the U.S. District Court for New Jersey ruled that “claims based on loans or transfers [to the defendant], part of the consideration of which was to enable defendant to participate in casino gambling activity at casinos in Atlantic City as a player, are void, invalid and unenforceable because not made in accordance with the restrictions and controls imposed by law under the Casino Control Act.” Nemtin v. Zarin, 577 F. Supp. 1135, 1147 (D. N.J. 1983).
The credit Resorts extended to petitioner during the first 4 months of 1980 apparently was not in accordance with the restrictions and controls imposed by New Jersey’s Casino Control Act. Thus, petitioner’s obligation to repay Resorts was invalid and unenforceable.
Obviously, petitioner did not receive the gambling chips out of Resorts’ detached or disinterested generosity, but rather he received them with Resorts’ expectation that his markers would be paid. Accordingly, the transfer of chips was not a gift from Resorts to petitioner. Commissioner v. Duberstein, 363 U.S. 278 (1960).
In my opinion, petitioner’s obligation to Resorts was void ab initio, and therefore, I would first hold that petitioner realized income (herein referred to as chip income) in 1980 (a year at issue) to the extent of the value of the chips received.
It is apparent that petitioner left the chips he obtained through the extension of credit by Resorts on Resorts’ gambling tables. For had he won, his markers undoubtedly would have been paid, and this case would not be before us. Accordingly, I would next hold that the amount of petitioner’s losses from wagering activities in 1980 equaled or exceeded the amount of chip income.
I recognize that section 165(d) limits losses from wagering transactions to the extent of gains from such transactions. In my opinion, for purposes of section 165(d), the chip income constitutes gain from a wagering transaction, because no such income would have been realized but for the wagering transactions in which petitioner’s losses occurred. Thus, I would hold that petitioner is entitled to deduct in 1980 his gambling losses to the extent of the chip income.
While I believe the preceding analysis resolves the tax consequences of petitioner’s transaction with Resorts, I feel compelled to address the majority’s holding that petitioner had income from discharge of gambling indebtedness in 1981.
Section 61(a)(12) provides that gross income includes income from the discharge of indebtedness. However, as the majority recognizes, not all discharges of indebtedness result in income.
In United States v. Hall, 307 F.2d 238, 241 (10th Cir. 1962), the court stated:
The tax statutes are practical, not pure theory.
* * * * * * *
A gambling loss is a hard reality but a gambling debt, being unenforceable in every state, has but a 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. * * * [Fn. ref. omitted.]
In my opinion, for tax purposes, an unenforceable debt is a contradiction in terms, an oxymoron. It is like shooting craps without dice. For interest on indebtedness to be deductible under section 163, it is well recognized that the indebtedness must be enforceable. I am unable to discern why the majority imposes a different rule for the inclusion of discharge of indebtedness income. Accordingly, for 1981, I would hold petitioner did not realize discharge of indebtedness income.
The result reached by the majority is tantamount to taxing petitioner on his losses. As stated by the court in Hall:
In deciding the income tax effects of cancellation of indebtedness for less than its face amount, a court need not in every case be oblivious to the net effect of the entire transaction. * * * [307 F.2d p. 242.]
I do not wish to be oblivous to the net effect of the transactions before us. I therefore dissent.