Carol M. Read, et al. - Page 69




                                       - 69 -                                         
          HALPERN, J., dissenting:                                                    
          I.   Introduction                                                           
               On February 5, 1986, Ms. Read disposed of all of her shares            
          of stock in Mulberry Motor Parts, Inc. (the shares and MMP,                 
          respectively) by transferring the shares to MMP (the transfer).             
          In consideration thereof, MMP paid Ms. Read $200,000 and agreed             
          to pay her an additional $638,724 in installments (with inter-              
          est).  Ms. Read’s adjusted basis in the shares was zero, and she            
          realized a gain on the transfer.  See sec. 1001(a).  That gain              
          must be recognized to her unless some nonrecognition provision              
          applies.  See sec. 1001(c).  Ms. Read relies on section 1041(a)             
          to avoid the recognition of gain.  Section 1041(a) provides:                
               SEC. 1041(a). General Rule.–-No gain or loss shall be                  
               recognized on a transfer of property from an individual                
               to (or in trust for the benefit of)--                                  
                    (1) a spouse, or                                                  
                    (2) a former spouse, but only if the transfer is                  
                    incident to the divorce.[1]                                       
          Ms. Read is an individual, and she claims that no gain is recog-            
          nized to her since she transferred the shares (property) to her             
          former spouse (Mr. Read) incident to their divorce.  Mr. Read               
          disagrees that the transfer was to him.  Ms. Read and Mr. Read              
          agree that the question of whether the transfer was to him should           
          be answered by determining whether he had a primary and uncondi-            

               1The term “incident to the divorce” is defined in                      
          sec. 1041(c), and that definition is not in issue here.                     





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