- 53 -
applies, we must treat the nontransferring spouse as the owner of
the transferring spouse’s property. Thus, assuming section
1041(a) applies, the question here is not how Mr. Read is taxed
if MMP redeems Ms. Read’s stock, even though those are the actual
facts; instead, the question is how Mr. Read is taxed if MMP
redeems his stock, because those are the deemed facts for “all
purposes” under the income tax. Sec. 1041(b). The Secretary
specifically implemented that concept in the penultimate sentence
of Q&A-9. As a result, symmetry is achieved without the need to
apply the primary and unconditional obligation requirement to the
nontransferring spouse. Further, it is not for the courts to
create their own barriers to qualifying for nonrecognition
treatment under section 1041(a) and Q&A-9 not provided by Con-
gress or the Secretary (e.g., imposition of a primary and uncon-
ditional obligation requirement, or creation of an exception for
redemption transactions).
VIII. Conclusion
I concur because the analysis of the majority is fully
consistent with the analysis in this concurring opinion.
PARR, WHALEN, FOLEY, VASQUEZ, and GALE, JJ., agree with this
concurring opinion.
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