- 85 - because Howard Berger was the controlling owner of the Woodbine business so that he earned its entire income, which was paid to her as a property settlement. We hold that Alice Berger had substantial authority for not reporting the ordinary income of Woodbine that she was led to believe by her advisers was properly taxable to Howard Berger. We further believe that Alice Berger had substantial authority, also in the form of a well-reasoned position, that she had no taxable gain on the sale of Woodbine to the Kunkowskis. Her position was that section 1041 and the temporary regulations thereunder are susceptible to the interpretation and application that the transfer of the full interest in Woodbine to Alice Berger, followed by her previously agreed-upon court-ordered sale to the Kunkowskis, was "on behalf of" Howard Berger, or should be so regarded under step-transaction principles. Cf. Arnes v. United States, 981 F.2d 456 (9th Cir. 1992). Having concluded that Alice Berger had substantial authority for her 1989 return position that there was no tax due on her Woodbine transactions, we reject respondent's imposition of the section 6662 accuracy-related penalty. To reflect the foregoing, 24(...continued) inhering accrued income elements. Compare Rev. Rul. 87-112, 1987-2 C.B. 207 with Asimow, "The Assault on Tax-Free Divorce: Carryover Basis and Assignment of Income", 44 Tax L. Rev. 65 (1988). Our opinion in Balding v. Commissioner, 98 T.C. 368 (1992), a case of first impression holding that sec. 1041 trumps the assignment of income doctrine (see discussion supra pp. 54- 55), was not published until March 1992.Page: Previous 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 Next
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