- 53 - with the assertions of Howard and respondent that she had or acquired any ownership interest in the Woodbine property and business, she concurs with respondent's general position on the application of Jud Plumbing and Standard Paving, and argues, under the assignment of income principle, that the deposits would be income to Howard Berger as of the date of transfer. Howard Berger now repudiates his 1989 return position and asserts that the transfer of his remaining one-half interest in the Woodbine property and business was a nontaxable transfer of property under section 1041, not an assignment of income, and that Jud Plumbing does not apply. We hold that section 1041 does not trump clear reflection of income in the peculiar factual circumstances of this case. As a result, Howard Berger will be required to accrue a share of income from Phase II mausoleum crypt sales for 1989, even though he transferred his one-half interest in Woodbine in March 1989, 2 months prior to the completion of the Phase II mausoleum. However, by reason of section 1041, he recognized no gain on that transfer or on Alice Berger's subsequent sale of Woodbine to the Kunkowskis. Section 1041 was enacted by section 421 of the Deficit Reduction Act of 1984 (DEFRA), Pub. L. 98-369, 98 Stat. 793-795. It provides as a general rule that No gain or loss shall be recognized on a transfer of property from an individual to * * * (1) a spouse, orPage: Previous 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 Next
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