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redeeming stockholder had a primary and unconditional obligation
to buy the stock. See, e.g., Arnes II; Hayes v. Commissioner,
101 T.C. 593, 606 (1993); Edler v. Commissioner, T.C. Memo. 1982-
67, affd. 727 F.2d 857 (9th Cir. 1984).
The dissenting opinion of Judge Ruwe advocates the primary
and unconditional obligation requirement theory to avoid whipsaw.
See Judge Ruwe’s dissent pp. 59-64. Under that view, the remain-
ing shareholder (here, Mr. Read) would be taxed only if the
transfer of the redemption proceeds satisfied a primary and
unconditional obligation of his to Ms. Read. Because under that
analysis the remaining shareholder would often escape taxation,
to achieve symmetry Judge Ruwe would permit the departing share-
holder (here, Ms. Read) to exclude gain or loss under section
1041(a) only if the transfer of the redemption proceeds satisfied
a primary and unconditional obligation of the remaining share-
holder.
If followed consistently in cases where section 1041(a)
applies, both the section 1041(b)-Q&A-9 theory and the primary
and unconditional obligation requirement theory would ensure
symmetry. Thus, I disagree with the suggestion that, to achieve
symmetry in the treatment of spouses, we need to apply the
“primary and unconditional obligation requirement” theory to
determine eligibility for section 1041(a) or Q&A-9. Congress
clearly specified in section 1041(b) that, if section 1041(a)
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