- 65 - transferring spouse receives money from the corporation in return for her stock. This receipt of money (especially if it repre- sents a substantial gain as in this case) benefits the transfer- ring spouse. Oftentimes the transfer will also generally benefit the spouse who is the remaining shareholder. This is the same dilemma that courts confronted in trying to determine whether a redemption of one shareholder’s stock could ever be considered a constructive dividend to the remaining shareholder. As a result, the courts fashioned the primary and unconditional obligation test that we applied in Arnes II. The fact that Ms. Read’s transfer was simply “in the interest of” Mr. Read or that Mr. Read received “some general benefit” is an insufficient reason for us to conclude that Mr. Read could have a constructive dividend. See Ingham v. United States, 167 F.3d 1240 (9th Cir. 1999), where the court explained that a transfer to a third party would not be considered “on behalf of” the other spouse within the meaning of Q&A-9 unless the transfer relieved the other spouse of a “specific legal obligation or liability.” Id. at 1244. The fact that the other spouse receives “some general benefit” is insufficient. Id. Because Q&A-9 controls the tax treatment of both spouses, a divorce-related corporate redemption transaction should not be considered to be a transfer “on behalf of” the nontransferring spouse within the meaning of Q&A-9 unless the nontransferringPage: Previous 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 Next
Last modified: May 25, 2011