Carol M. Read, et al. - Page 67




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          met and Q&A-9 applies, then respondent’s determinations should be           
          sustained.  To take the latter statement out of context after               
          having rejected the argument on which it is predicated is totally           
          unwarranted.  In any event, we should never rely upon and apply a           
          party’s statement of law that is contrary to a holding contained            
          in a prior Court-reviewed opinion of this Court that is still               
          binding precedent.9  No matter how convenient it may be to avoid            
          unreconcilable differences in our opinions, justice demands that            
          we decide issues of law that control the outcome of cases that              
          come before us.  Today’s majority opinion puts in place one legal           
          standard for determining whether a transferring spouse receives             
          the benefits of section 1041, while leaving in place the differ-            
          ent and more stringent standard of Arnes II for purposes of                 
          determining whether the corresponding tax burdens can be placed             
          on the nontransferring spouse.  This opens the door in future               
          cases for both spouses to escape the tax impact of a divorce-               
          related transfer of appreciated property and therefore contra-              
          venes one of the purposes of section 1041.                                  
               The question we should ask and answer is whether MMP’s                 
          redemption of Ms. Read’s stock satisfied a primary and uncondi-             
          tional obligation of Mr. Read.  If the answer is yes, we should             
          hold that Q&A-9 applies, Mr. Read had a constructive dividend,              


               9The majority does not purport to overrule or modify Arnes             
          II.                                                                         





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