Carol M. Read, et al. - Page 2




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               be made to X, instead of to H, (2) that X, instead of                  
               H, pay the stated amount of cash to W simultaneously                   
               with that sale and conveyance, and (3) that X, instead                 
               of H, issue a promissory note to W bearing 9-percent                   
               interest for the balance of the purchase price.  There-                
               after, pursuant to H's election under the divorce                      
               judgment, W sold and transferred to X, instead of to H,                
               all of the X stock that she owned.                                     
                    Sec. 1041(a), I.R.C., provides that no gain or                    
               loss is to be recognized on a transfer of property by                  
               an individual to a spouse or a former spouse but only                  
               if the transfer to the former spouse is incident to the                
               divorce.  Sec. 1.1041-1T(c), Q&A-9, Temporary Income                   
               Tax Regs. (Q&A-9), 49 Fed. Reg. 34453 (Aug. 31, 1984),                 
               addresses a transfer of property by a spouse (trans-                   
               ferring spouse) to a third party on behalf of a spouse                 
               or former spouse (nontransferring spouse).  Provided                   
               that the other requirements of that temporary regula-                  
               tion and sec. 1041, I.R.C., are satisfied, Q&A-9 treats                
               such a transfer as a transfer of property by the trans-                
               ferring spouse directly to the nontransferring spouse                  
               that qualifies for nonrecognition treatment under sec.                 
               1041, I.R.C., and an immediate transfer of the property                
               by the nontransferring spouse to the third party in a                  
               transaction that does not qualify for nonrecognition                   
               treatment under sec. 1041, I.R.C.                                      
                    Petitioners argue that the legal standard that                    
               must be applied in order to determine whether W’s                      
               transfer of her X stock to X was a transfer to a third                 
               party on behalf of H within the meaning of Q&A-9 is the                
               primary-and-unconditional-obligation standard estab-                   
               lished by constructive-dividend decisional law.  How-                  
               ever, they disagree as to whether the primary-and-                     
               unconditional-obligation standard is satisfied as to                   
               Mr. Read in the instant cases.                                         
                    1.  Held:  The primary-and-unconditional-obliga-                  
               tion standard is not an appropriate standard to apply                  
               in order to determine whether W’s transfer of her X                    
               stock to X was a transfer of property by W to a third                  
               party on behalf of H within the meaning of Q&A-9.                      
               Held, further, the primary-and-unconditional-obligation                
               standard is not an appropriate standard to apply in any                
               case involving a corporate redemption in a divorce                     
               setting in order to determine whether the transfer of                  
               property by the transferring spouse to a third party is                
               on behalf of the nontransferring spouse within the                     
               meaning of Q&A-9.                                                      
                    2.  Held, further, applying the common, ordinary                  





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