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avoiding whipsaw to the Government in cases where section 1041(a)
applies by specifying how we treat the nontransferring spouse;
i.e., “deeming” certain facts to have occurred. That is, under
section 1041(b) and the penultimate sentence of Q&A-9, Ms. Read
is deemed to have transferred her MMP stock to Mr. Read, and Mr.
Read is deemed to have transferred it to MMP to be redeemed.
Thus, if section 1041(a) applies, we are required to assume that
the stock MMP redeemed was Mr. Read’s, not Ms. Read’s.
Application of these two principles will properly implement
Congressional intent both for section 1041(a), in making transac-
tions between spouses tax free, and section 1041(b), in insuring
against whipsaw of the Government. For convenience in this
concurring opinion, I refer to this analysis as the “section
1041(b)-Q&A-9 theory.”
The dissenting opinion of Judge Ruwe emphasizes the impor-
tance of achieving symmetrical results between spouses in the
stock redemption context if section 1041 applies. However, it
does not rely on the section 1041(b)-Q&A-9 theory. Instead, it
would apply what, for convenience, I will call the “primary and
unconditional obligation requirement” theory, derived from law
developed before section 1041 was enacted. In this concurrence,
I contend that the section 1041(b)-Q&A-9 theory is as effective
in preventing whipsaw in the stock redemption context if section
1041(a) applies as the primary and unconditional obligation
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