Marshall I. Gordon - Page 10

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          only an equitable interest.  See Hill v. Hill, 185 Kan. 389, 345            
          P.2d 1015, 1023 (1959).                                                     
               The flaw in that argument is the contention that the                   
          Separation Agreement was executed on October 9, 1987.  On that              
          date, petitioner and Elaine merely announced that they had                  
          reached a potential compromise; they did not file anything with             
          the court.  In fact, petitioner and Elaine initialed the                    
          Separation Agreement in the sections describing the equitable               
          interest as late as July 22, 1988, and September 2, 1988.  The              
          exchange actually occurred thereafter, on September 7, 1988.                
          Finally, the Separation Agreement was not filed until September             
          28, 1988, a fact to which the Government has stipulated.  At the            
          time immediately prior to the exchange, Elaine still held an                
          ownership interest.                                                         
               The Government makes an extended argument based upon Kansas            
          law and differences between warranty deeds and quitclaim deeds.             
          Of course, Kansas law is controlling as to the technicalities of            
          title relating to the property.  But such niceties in local law             
          (cf. Helvering v. Hallock, 309 U.S. 106, 114 (1940)) do not                 
          detract from the substance of the transaction as we view this               
          record.                                                                     
               We hold that petitioner did not realize any $800,000 capital           
          gain with respect to the transaction before us.  Since there is             
          no deficiency with respect to this $800,000, petitioner is not              






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