Martin Feldman and Lynne Z. Gold-Bikin - Page 15

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          respondent’s contention that section 1041 applies to this                   
          transaction.6                                                               
               Petitioner husband relies on section 1.1034-1(c)(4), Income            
          Tax Regs., for his assertion that he is entitled to include the             
          entire outstanding mortgage balance on the new residence in the             
          calculation of his acquisition cost.  Section 1.1034-1(c)(4),               
          Income Tax Regs., provides that the taxpayer's cost of purchasing           
          the new residence includes not only cash but also any                       
          indebtedness to which the property purchased is subject at the              
          time of purchase whether or not assumed by the taxpayer and the             
          face amount of any liabilities of the taxpayer which are part of            
          the consideration for the purchase.  Petitioner husband maintains           
          that he is entitled to include the entire outstanding mortgage on           
          the property in his cost of purchasing the replacement residence            
          despite the fact that he owns the King of Prussia property with             
          his spouse.  Petitioner husband entered into a private agreement            
          in July of 1989 in which he agreed to assume one-half of the                
          mortgage indebtedness of the King of Prussia property.  This                
          agreement states that the transfer of one-half of the property to           
          petitioner husband was in exchange for his assumption of one-half           
          of the mortgage indebtedness.  We hold that petitioner husband’s            


          6Respondent contends that when the provisions for deferral                  
          of recognition of gain on the sale of a residence under section             
          1034 overlap the provision of sec. 1041 for married spouses, the            
          provisions of sec. 1041 apply (a matter on which we express no              
          opinion).                                                                   




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