.jpg)
Am I reading 11 USC 101(10A) Correctly?
charset="ISO-8859-1"
As it has been written by David Tilem, income means different things
under the IRC and the BC.
So its purely of academic interest that I agree with Denniss
conclusion that gifts are income under the IRC. Section 61 defines income to include all income, including a list of specific income items.
That list doesnt exclude gifts; theres a lot of case law on Section 61
that says that inclusio unum est exclusio the rest doesnt apply to this
statute. So Section 61 would include gifts as gross income, but for its
clause that excepts other kinds of income excluded by the income tax code
(this subchapter).
Section 102 specifically excludes gifts from gross income. Therefore, I
think gifts are income under the tax code, but not gross income. Gifts are taxed under a separate subchapter of the internal revenue code
e IRS
deal in more than just income taxes. They also handle excise taxes, for
instance.
But for our purposes, were trying to figure out whether the bankruptcy
codes current monthly income includes a one-time gift in the last six
months. Again, I agree with Denniss analysis in other posts subparagraph
A says to include average monthly income regardless of whether taxable, and
B includes payments made on behalf of another (which are a subset of gifts,
inclining me to believe that the entire set of gifts is includable as
CMI). If I had this case, Id disclose the gift and put copious notes about
how unlikely it is to be repeated.
- John D. Faucher
On 7/19/10 5:43 PM, "Dennis McGoldrick" wrote:
>
>
>
>
>
> It is interesting that two income tax people have written opposite reviews of
> my statement that gifts are income. My basic premise was that things taxed by
> the internal revenue code are income. As can be seen from the IRC sections
> quoted by Giovanni, et al, gifts are excluded from "gross income" for
> calculation of the 1040, why? because they are taxed under the code as gifts,
> on the gift tax forms. I've been looking at the IRC and the CCH Master Tax
> guide and both places the two are carefully differentiated. So, I concede
> there is an argument that gifts are not income.
>
> However, in the end, I would place my bets with gifts being considered income.
> Why? because they are taxed as a form of a gain by the internal revenue code.
> It is hard to wrap my head around this gain not being income, and because
> these gifts move you ahead in life, and make it easier to pay creditors.
>
>
>
> dennis
>
>
>
>
>
>
>
>>> - John D. Faucher
charset="ISO-8859-1"
Re: [cdcbaa] Am I reading 11 USC 101(10A) Correctly?
A
The post was migrated from Yahoo.
I guess you and I have to agree ti disagree. If my kid loses a job and I pay two months rent, and fill the fridge, I believe that is the exclusion. If I gave money directly, that goes under A and is included.
Sent from my iPhone
On Jul 19, 2010, at 6:12 PM, Kenneth Schwartz wrote:
I agree, because they are given on more than one occasion. What about a one-time gift? Subsection (B) has to exclude it or the subsection would have no meaning.
Kenneth Jay Schwartz, Esq.
LAW OFFICE OF KENNETH JAY SCHWARTZ
21031 Ventura Boulevard, 12th Floor
Woodland Hills, California
91364-2203
Telephone: (818)226-1205
Email: kennethjschwartz@yahoo.com
Sent from my iPhone
On Jul 19, 2010, at 6:06 PM, Dennis McGoldrick wrote:
Ken,
I gave an example of a student living in college, off of his parents payments of tuition, room and board. That student doesn't file a return and list all of the tuition, room and board as income, but B would include the room and board (tuition not being "household expenses").
I am sure there are plenty of other examples, including grandma living in the studio in the backyard. She isn't going to file a tax return showing income, but the amount the kids pay for the studio, food, etc., for mom, comes in by way of B if it is regularly given.
dennis
e:
I guess you and I have to agree ti disagree. If my kid loses a job and I pay two months rent, and fill the fridge, I believe that is the exclusion. If I gave money directly, that goes under A and is included.Sent from my iPhoneOn Jul 19, 2010, at 6:12 PM, Kenneth Schwartz <kennethjschwartz@yahoo.com> wrote:
I agree, because they are given on more than one occasion. What about a one-time gift? Subsection (B) has to exclude it or the subsection would have no meaning. Kenneth Jay Schwartz, Esq.LAW OFFICE OF KENNETH JAY SCHWARTZ21031 Ventura Boulevard, 12th FloorWoodland Hills, California 91364-2203Telephone: (818)226-1205Email: kennethjschwartz@yahoo.comSent from
my iPhoneOn Jul 19, 2010, at 6:06 PM, Dennis McGoldrick <easky1@yahoo.com> wrote:
Ken,
I gave an example of a student living in college, off of his parents payments of tuition, room and board. That student doesn't file a return and list all of the tuition, room and board as income, but B would include the room and board (tuition not being "household expenses").
I am sure there are plenty of other examples, including grandma living in the studio in the backyard. She isn't going to file a tax return showing income, but the amount the kids pay for the studio, food, etc., for mom, comes in by way of B if it is regularly given.
dennis--- On Mon, 7/19/10, Kenneth Jay Schwartz <kennethjschwartz@yahoo.com> wrote:
The post was migrated from Yahoo.
I concede that given a choice, I would rather have the clients wait long
enough for the gift not to affect their mean test or maybe try to have the
donor pay certain bills directly instead of giving it to the client.
However, since clients frequently do not give you a choice, I feel
confident that taking the position that a one time gift by a non-employer is
not includable in income for means test purposes would be defensible under
Rule 11.
I concede that given a choice, I would rather have the clients wait long enough for the gift not to affect their mean test or maybe try to have the donor pay certain bills directly instead of giving it to the client. However, since clients frequently do not give you a choice, I feel confident that taking the position that a one time gift by a non-employer is not includable in income for means test purposes would be defensible under Rule 11.
The post was migrated from Yahoo.
I agree, because they are given on more than one occasion. What about a one-time gift? Subsection (B) has to exclude it or the subsection would have no meaning.
Kenneth Jay Schwartz, Esq.
LAW OFFICE OF KENNETH JAY SCHWARTZ
21031 Ventura Boulevard, 12th Floor
Woodland Hills, California
91364-2203
Telephone: (818)226-1205
Email: kennethjschwartz@yahoo.com
Sent from my iPhone
On Jul 19, 2010, at 6:06 PM, Dennis McGoldrick wrote:
> Ken,
> I gave an example of a student living in college, off of his parents payments of tuition, room and board. That student doesn't file a return and list all of the tuition, room and board as income, but B would include the room and board (tuition not being "household expenses").
>
> I am sure there are plenty of other examples, including grandma living in the studio in the backyard. She isn't going to file a tax return showing income, but the amount the kids pay for the studio, food, etc., for mom, comes in by way of B if it is regularly given.
>
> dennis
>
> --- On Mon, 7/19/10, Kenneth Jay Schwartz wrote:
>
>
I agree, because they are given on more than one occasion. What about a one-time gift? Subsection (B) has to exclude it or the subsection would have no meaning. Kenneth Jay Schwartz, Esq.LAW OFFICE OF KENNETH JAY SCHWARTZ21031 Ventura Boulevard, 12th FloorWoodland Hills, California 91364-2203Telephone: (818)226-1205Email: kennethjschwartz@yahoo.comSent from my iPhoneOn Jul 19, 2010, at 6:06 PM, Dennis McGoldrick <easky1@yahoo.com> wrote:
Ken,
I gave an example of a student living in college, off of his parents payments of tuition, room and board. That student doesn't file a return and list all of the tuition, room and board as income, but B would include the room and board (tuition not being "household expenses").
I am sure there are plenty of other examples, including grandma living in the studio in the backyard. She isn't going to file a tax return showing income, but the amount the kids pay for the studio, food, etc., for mom, comes in by way of B if it is regularly given.
dennis--- On Mon, 7/19/10, Kenneth Jay Schwartz <kennethjschwartz@yahoo.com> wrote:
The post was migrated from Yahoo.
Ken,
I gave an example of a student living in college, off of his parents payments of tuition, room and board. That student doesn't file a return and list all of the tuition, room and board as income, but B would include the room and board (tuition not being "household expenses").
I am sure there are plenty of other examples, including grandma living in the studio in the backyard. She isn't going to file a tax return showing income, but the amount the kids pay for the studio, food, etc., for mom, comes in by way of B if it is regularly given.
dennis
e:
Ken,
I gave an example of a student living in college, off of his parents payments of tuition, room and board. That student doesn't file a return and list all of the tuition, room and board as income, but B would include the room and board (tuition not being "household expenses").
I am sure there are plenty of other examples, including grandma living in the studio in the backyard. She isn't going to file a tax return showing income, but the amount the kids pay for the studio, food, etc., for mom, comes in by way of B if it is regularly given.
dennis--- On Mon, 7/19/10, Kenneth Jay Schwartz <kennethjschwartz@yahoo.com> wrote:
The post was migrated from Yahoo.
Dennis, your last analysis makes sense, but again, it ignores the explicitlanguage found in subsection (B). Why did the drafters need to put in thatlanguage if they intended that even a one-time gift be includable as income?
Kenneth Jay Schwartz, Esq.
LAW OFFICE OF KENNETH JAY SCHWARTZ
21031 Ventura Boulevard, 12th Floor
Woodland Hills, California 91364-2203
Telephone: (818) 226-1205
Facsimile: (818) 226-1213
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________________________________
To: cdcbaa@yahoogroups.com
Sent: Mon, July 19, 2010 5:43:31 PM
Subject: Re: [cdcbaa] Am I reading 11 USC 101(10A) Correctly?
It is interesting that two income tax people have written opposite reviews of my
statement that gifts are income. My basic premise was that things taxed by the
internal revenue code are income. As can be seen from the IRC sections quoted
by Giovanni, et al, gifts are excluded from "gross income" for calculation of
the 1040, why? because they are taxed under the code as gifts, on the gift tax
forms. I've been looking at the IRC and the CCH Master Tax guide and bothplaces the two are carefully differentiated. So, I concede there is an argument
that gifts are not income.
However, in the end, I would place my bets with gifts being considered income.
Why? because they are taxed as a form of a gain by the internal revenue code.
It is hard to wrap my head around this gain not being income, and because these
gifts move you ahead in life, and make it easier to pay creditors.
dennis
Dennis, your last analysis makes sense, but again, it ignores the explicit language found in subsection (B). Why did the drafters need to put in that language if they intended that even a one-time gift be includable as income? Kenneth Jay Schwartz, Esq.LAW OFFICE OF KENNETH JAY SCHWARTZ21031 Ventura Boulevard, 12th FloorWoodland Hills, California 91364-2203Telephone: (818) 226-1205Facsimile: (818) 226-1213THE INFORMATION CONTAINED IN THIS E-MAIL IS INTENDED ONLY FOR THE PERSONAL AND CONFIDENTIAL USE OF THE DESIGNATED RECIPIENT(S) NAMED ABOVE. THIS MESSAGE MAY BE AN ATTORNEY-CLIENT COMMUNICATION, AND, AS SUCH, IS PRIVILEGED AND CONFIDENTIAL. IF THE READER OF THIS MESSAGE IS NOT THE INTENDED RECIPIENT OR AN AGENT
RESPONSIBLE FOR DELIVERING IT TO THE DESIGNATED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT YOU HAVE RECEIVED THIS E-MAIL IN ERROR, AND THAT ANY REVIEW, DISSEMINATION, DISTRIBUTION OR COPYING OF THIS MESSAGE IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY US IMMEDIATELY. THANK YOU.From: Dennis McGoldrick <easky1@yahoo.com>To: cdcbaa@yahoogroups.comSent: Mon, July 19, 2010 5:43:31 PMSubject: Re: [cdcbaa] Am I reading 11 USC 101(10A)
Correctly?
It is interesting that two income tax people have written opposite reviews of my statement that gifts are income. My basic premise was that things taxed by the internal revenue code are income. As can be seen from the IRC sections quoted by Giovanni, et al, gifts are excluded from "gross income" for calculation of the 1040, why? because they are taxed under the code as gifts, on the gift tax forms. I've been looking at the IRC and the CCH Master Tax guide and both places the two are carefully differentiated. So, I concede there is an argument that gifts are not income.
However, in the end, I would place my bets with gifts being considered income. Why? because they are taxed as a form of a gain by the internal revenue code. It is hard to wrap my head around this gain not being income, and because these gifts move you ahead in life, and make it easier to pay creditors.
dennis
The post was migrated from Yahoo.
It is interesting that two income tax people have written opposite reviews of my statement that gifts are income. My basic premise was that things taxed by the internal revenue code are income. As can be seen from the IRC sections quoted by Giovanni, et al, gifts are excluded from "gross income" for calculation of the 1040, why? because they are taxedunder the code as gifts, on the gift tax forms. I've been looking at the IRC and the CCH Master Tax guide and both places the two are carefully differentiated.However, in the end, I would place my bets with gifts being considered income. Why? because they are taxed as a form of a gain by the internal revenue code. It is hard to wrap my head around this gain not being income, and because these gifts move you ahead in life, and make it easier to pay creditors.
dennis
It is interesting that two income tax people have written opposite reviews of my statement that gifts are income. My basic premise was that things taxed by the internal revenue code are income. As can be seen from the IRC sections quoted by Giovanni, et al, gifts are excluded from "gross income" for calculation of the 1040, why? because they are taxed under the code as gifts, on the gift tax forms. I've been looking at the IRC and the CCH Master Tax guide and both places the two are carefully differentiated. So, I concede there is an argument that gifts are not income.
However, in the end, I would place my bets with gifts being considered income. Why? because they are taxed as a form of a gain by the internal revenue code. It is hard to wrap my head around this gain not being income, and because these gifts move you ahead in life, and make it easier to pay creditors.
dennis
The post was migrated from Yahoo.
charset="windows-1251"
This issue has come up again and again.
"Income" for purposes of the IRC (Internal Revenue Code) is not the same as
"Income" for Title 11 (Bankruptcy Code) unless you plan on taking the case
to the 9th Circuit and possibly beyond. References to the IRC and
attempting to determine whether gifts are taxable under the IRC are, with
all due respect, not helpful.
David A. Tilem
Certified Bankruptcy Specialist*
Law Offices of David A. Tilem (a debt relief agency)
206 N. Jackson Street, #201, Glendale, CA 91206
Tel: 818-507-6000 Fax: 818-507-6800
* Bankruptcy specialist cert. by State Bar of CA Bd of Legal
Specialization.
Giovanni Orantes
Sent: Monday, July 19, 2010 11:26 AM
To: cdcbaa@yahoogroups.com
Subject: Re: [cdcbaa] Am I reading 11 USC 101(10A) Correctly?
Gifts are generally not considered income for the recipient. When a taxpayer
receives a gift, the taxpayer has an undeniable accession to wealth,
he Code
specifically excludes gifts from gross income. IRC 102. See also
Commissioner v. Duberstein, 363 U.S. 278 (1960), and Helvering v. Horst, 311
U.S. 112 (1940).
On Mon, Jul 19, 2010 at 11:20 AM, Dennis wrote:
B adds payments to a third party on behalf of the debtor. For a college
student, or other dependant, these payments by parents are not generally
income, but those payments would come in under B.
Dennis
Sent from my iPhone
On Jul 19, 2010, at 9:19 AM, Giovanni Orantes wrote:
I certainly agree. (A) does not include gifts because Congress chose to use
the word "income" in it. Courts are to presume that a legislature says in a
statute what it means and means in a statute what it says. Connecticut NatBank v. Germain, 503 U.S. 249 (1992). That (A) does not include gifts is
further hammered home by the very existence of (B).
Inclusio unius est exclusio alterius. 11 Co. 58.
On Mon, Jul 19, 2010 at 9:14 AM, Kenneth Schwartz wrote:
So we agree(?). The language in (B) would be meaningless if a one-time gift
were included in income because of an over-expansive Interpretation of
subsection (A)?
Kenneth Jay Schwartz, Esq.
LAW OFFICE OF KENNETH JAY SCHWARTZ
21031 Ventura Boulevard, 12th Floor
Woodland Hills, California
91364-2203
Telephone: (818)226-1205
Email:
kennethjschwar
The post was migrated from Yahoo.
Well, you don't have to look to the IRC to interpret (10A), especially
since, as pointed out, it does not actually define the word "income" which
means we have to resort to traditional statutory interpretation tools,
e.g., *
courts construe a statutory term in accordance with its ordinary or natural
meaning. FDIC v. Meyer, 510 U.S. 471 (1994)
*. Cannons of statutory interpretation dictate that the plain every-day
definitions would be enough. However, since it has no definition for
"income", the IRC is not helpful at all unless we indulge in the belief that
a court would look to it for guidance. I personally think the IRC is useful
because if a gift is excluded from a definition that is intended to be so
broad and all-encompassing, such as the definition of "gross income," *a
fortiori*, it would not constitute "income" under a more plain-meaning
reading. If Congress had meant to make "income" broader than normally
understood, it knows how to do so as the fashion in which it defined "gross
income" in the IRC demonstrates -- but it didn't. When you combine that
with the inclusion (i.e., regular basis) and exclusions in (B) [*Inclusio
unius est exclusio alterius*], I am again left with the impression that
gifts not made on a regular basis are not income.
For convenience, below is the language of the IRC's definition of "income":
(a) *General definition *
Except as otherwise provided in this subtitle, gross income means all income
from whatever source derived, including (but not limited to) the following
items:
(1) Compensation for services, including fees, commissions, fringe benefits,
and similar items;
(2) Gross income derived from business;
(3) Gains derived from dealings in property;
(4) Interest;
(5) Rents;
(6) Royalties;
(7) Dividends;
(8) Alimony and separate maintenance payments;
(9) Annuities;
(10) Income from life insurance and endowment contracts;
(11) Pensions;
(12) Income from discharge of indebtedness;
(13) Distributive share of partnership gross income;
(14) Income in respect of a decedent; and
(15) Income from an interest in an estate or trust.
(b) *Cross references *
For items specifically included in gross income, see part II (sec.
The post was migrated from Yahoo.
Then how do you explain subsection (B)'s language?
Kenneth Jay Schwartz, Esq.
LAW OFFICE OF KENNETH JAY SCHWARTZ
21031 Ventura Boulevard, 12th Floor
Woodland Hills, California
91364-2203
Telephone: (818)226-1205
Email: kennethjschwartz@yahoo.com
Sent from my iPhone
On Jul 19, 2010, at 2:09 PM, John Faucher wrote:
> Just to muddy things further, note that the IRC never defines income. All definitions refer to gross income, which presumably isnt congruent with income, otherwise Congress wouldnt have needed to qualify income>
> So to the IRS a gift is income, but not gross income. The IRS doesnt care how other governmental bodies define income. If youre looking to the IRC definition, Id have to agree with Dennis 101(10A)(a) includes gifts.
>
>
> - John D. Faucher
>
>
> On 7/19/10 12:43 PM, "Giovanni Orantes" wrote:
>
>
>
>
>
>
>
> For convenience, here's the text of IRC 102 (which is useful to analyze other situations, too):
>
> (a) General rule
> Gross income does not include the value of property acquired by gift, bequest, devise, or inheritance.
> (b) Income
> Subsection (a) shall not exclude from gross income
> (1) the income from any property referred to in subsection (a); or
> (2) where the gift, bequest, devise, or inheritance is of income from property, the amount of such income.
> Where, under the terms of the gift, bequest, devise, or inheritance, the payment, crediting, or distribution thereof is to be made at intervals, then, to the extent that it is paid or credited or to be distributed out of income from property, it shall be treated for purposes of paragraph (2) as a gift, bequest, devise, or inheritance of income from property. Any amount included in the gross income of a beneficiary under subchapter J shall be treated for purposes of paragraph (2) as a gift, bequest, devise, or inheritance of income from property.
> (c) Employee gifts
> (1) In general
> Subsection (a) shall not exclude from gross income any amount transferred by or for an employer to, or for the benefit of, an employee.
> (2) Cross references
> For provisions excluding certain employee achievement awards from gross income, see section 74 (c) .
> For provisions excluding certain de minimis fringes from gross income, see section 132 (e) .
>
> On Mon, Jul 19, 2010 at 11:47 AM, Dennis wrote:
>
>
>
>
>
> Only if the person receiving the gift does not pay the tax.
>
> Dennis
>
> Sent from my iPhone
>
> On Jul 19, 2010, at 11:08 AM, Giovanni Orantes wrote:
>
>
>
>
> aren't gifts taxable to the one who gives the gift?
>
> On Mon, Jul 19, 2010 at 11:04 AM, Dennis wrote:
>
>
>
>
>
> Don't have the internal rev code here in Judge Tighe's courtroom, but I learned in tax class, 35 years ago, that gifts are income. I think the name of the class was, Estate and Gift Tax.
>
> A includeds all income, even if not taxable. Gift are taxable income, so I don't think that is really one the table.
>
> Dennis
>
> Sent from my iPhone
>
> On Jul 19, 2010, at 10:30 AM, Giovanni Orantes wrote:
>
>
>
>
> I love this listserv! Thank you Dennis and everyone else who made the listserv possible. This issue is ripe for an article or note and some of the material to write it is in this trail. I pulled up all of the published cases related to Section 101 on lexis and none of the published opinions touch on this particular issue although a lot of them have discussed (10A) and contain snippets to put together the argument in this situation. If I could only free up some time.
>
> On Mon, Jul 19, 2010 at 9:20 AM, wrote:
>
>
>
>
>
> In a message dated 7/19/2010 9:07:05 AM Pacific Daylight Time, go@gobklaw.com writes:
>
>
>
>
>
> Let's cite some authority:
>
>
>
> Remember that In the absence of a definition, courts construe a statutory term in accordance with its ordinary or natural meaning. FDIC v. Meyer, 510 U.S. 471 (1994).
>
>
>
> Let's start with the definition of "income":
>
>
>
> From Wiktionary:
>
>
> Noun
>
>
> Singular
> income Plural
> incomes
>
>
> income (plural incomes )
>
> (or uncountable) Money one earns by working or capitalising off other people's work.
>
>
>
> From the Oxford English Dictionary:
>
>
> noun
>
> money received, especially on a regular basis, for work or through investments:he has a nice home and an adequate income figures showed an overall increase in income this year
>
> That means that the word income would not include unearned amounts, except that (B) goes on to include some of such types of amounts. However, Inclusio unius est exclusio alterius. (The inclusion of one is the exclusion of another.) 11 Co. 58.
>
>
>
> By including subsection (B) at all, Congress shows that (A) is not as all-inclusive as you make it out to be. If we read (A) as broadly as you suggest, (B) would be surplusage.
>
>
>
> By the way, the following canons of statutory interpretation also apply here:
>
>
> A court must, if possible, give effect to every clause and word of a statute. Negonsott v. Samuels, 507 U.S. 99 (1993).
> A statute should be interpreted so as not to render one part inoperative. Mountain States Tel. & Tel. v. Pueblo of Santa Ana, 472 U.S. 237 (1985).> Every part of a statute must be viewed in connection with the whole so as to harmonize all parts, if practicable, and give sensible and intelligent effect to each, for it is not to be presumed that the legislature intended any part of a statute to be without a meaning. General Motors Acceptance Corp. v. Whisnant, 387 F.2d 774 (5th Cir. 1968).
>
>
> On Mon, Jul 19, 2010 at 7:04 AM, Kenneth Schwartz wrote:
>
>
>
>
>
>
>
>
> What is your authority for calling a gift income under (A)? There's no definition of income there
>
>
>
> Kenneth Jay Schwartz, Esq.
>
> LAW OFFICE OF KENNETH JAY SCHWARTZ
>
> 21031 Ventura Boulevard, 12th Floor
>
> Woodland Hills, California
>
> 91364-2203
>
> Telephone: (818)226-1205
>
> Email: kennethjschwartz@ yahoo.com
>
>
>
> Sent from my iPhone
>
>
>
> On Jul 19, 2010, at 5:31 AM, Dennis wrote:
>
>
>
>
>
>
>
>
> A + B - SSI - ( war crimes + terrorism pymnts) CMI. A includes income. Gifts are income, therefore gifts are included in A,
>
>
>
> B includes, amounts paid by others, on a regular basis, then excludes SSI and other things.
>
>
>
> Since gifts are in A, and B includes more than just normal income, you cannot exclude gifts in B. B only excludes SSI, and compensation for war crimes and terrorism.
>
>
>
> Dennis
>
> Sent from my iPhone
>
>
>
>
>
The post was migrated from Yahoo.