Alice Berger, et al. - Page 53

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          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, or                                                      




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