Alice Berger, et al. - Page 85

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          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.                                    


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