- 46 - extends section 1041(a) to transfers of property by a spouse (transferring spouse) to a third party on behalf of a former spouse (nontransferring spouse). To qualify, the transfer must be “on behalf of” the transferring spouse. The temporary regula- tions do not define or limit the term “on behalf of”. Q&A-9, as applied to divorcing spouses, properly implements section 1041(a) because it recognizes that section 1041 applies not only to transfers to the other spouse, but also to transfers to a third party “on behalf of” that other spouse. Like section 1041(a), this facilitates the division of a marital estate incident to divorce without taxation to the spouse who is with- drawing assets from the marital estate. There is no suggestion in the regulations that the “on behalf of” language has any purpose other than to make Q&A-9 apply as broadly as section 1041(a) does; i.e., to transactions made to divide a marital estate. The language of section 1041(a), its legislative history, and the language of Q&A-9, clearly support the view of the majority that the “on behalf of” standard in Q&A-9 is satisfied if the transfer was “in the interest of” or was made by the transferring spouse acting “as a representative of” the nontransferring spouse. Majority op. pp. 36-38. 4(...continued) transaction that qualifies for nonrecognition of gain under section 1041.Page: Previous 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 Next
Last modified: May 25, 2011