- 2 - 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, ordinaryPage: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Next
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