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requirement theory and that the former is clearly incorporated in
section 1041, its legislative history, and Q&A-9, and the latter
is not. Further, I believe it is not for the courts to create
barriers to qualifying for nonrecognition treatment under section
1041(a) and Q&A-9 that were not provided by the Congress or the
Secretary.
II. Section 1041 Applies Broadly to Transactions Between
Divorcing Spouses
No gain or loss is recognized on a transfer of property from
an individual to a former spouse if the transfer is incident to
divorce. See sec. 1041(a)(2).2 The phrase “incident to di
2 Sec. 1041(a) and (c) provides as follows:
SEC. 1041. TRANSFERS OF PROPERTY BETWEEN SPOUSES OR
INCIDENT TO DIVORCE.
(a) General Rule.–-No gain or loss shall be
recognized on a transfer of property from an individual
to (or in trust for the benefit of)--
(1) a spouse, or
(2) a former spouse, but only if the
transfer is incident to the divorce.
* * * * * * *
(c) Incident to Divorce.–-For purposes of
subsection (a)(2), a transfer of property is incident
to the divorce if such transfer--
(1) occurs within 1 year after the date
on which the marriage ceases, or
(continued...)
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