Katherine A. Weir - Page 8




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          ex-husband intended by that arrangement anything other than that            
          he would act as a collection agent on her behalf.  We do not read           
          the agreement as allocating the pension in full to the ex-husband           
          and, on account thereof, other community property of an equal               
          value to petitioner.  Petitioner has cited no case interpreting             
          language similar to that in the agreement in the manner advocated           
          by petitioner.  We find that, pursuant to the agreement and                 
          incident to the divorce, petitioner received an interest in the             
          pension as her separate property.                                           
                    2.  Tax Consequences to Petitioner on Receipt of Her              
                    Separate Property Interest in the Pension                         
               Section 1041 deals with transfers of property between                  
          spouses or incident to divorce.  In general, it provides that               
          (1) no gain or loss shall be recognized to the transferor on such           
          a transfer and (2) the transferee succeeds to the transferor’s              
          basis.  It is arguable that section 1041 has no application to an           
          equal-in-value division of the property of a marital community,             
          since there is no transfer of property but only a partition of              
          the community.  See Commissioner v. Mills, 183 F.2d 32, 34                  
          (9th Cir. 1950), affg. 12 T.C. 468 (1949); Walz v. Commissioner,            
          32 B.T.A. 718, 720 (1935).                                                  
               In any event, section 1041 is inapplicable to any transfer             
          in 1980 incident to either the agreement or the final judgment,             
          since any such transfer would be pursuant to an instrument that             
          predates the effective date of section 1041.  See sec. 421(d) of            





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