Academic journal article Journal of Accountancy

Treasury Clarifies Third-Party Transfers

Academic journal article Journal of Accountancy

Treasury Clarifies Third-Party Transfers

Article excerpt

Under IRC section 1041, taxpayers recognize no gain or loss on property transfers between spouses during marriage or related to a divorce. The section's intent is to treat spouses as a single economic unit and defer (but not eliminate) any tax on appreciation until property is transferred to a third party outside the marital unit.

Temporary regulations section 1041-1T(c), Q&A 9, describes three situations in which a transfer to a third party on a spouse's behalf may qualify for nonrecognition of gain under section 1041. This "on behalf of" standard creates much confusion and litigation when the transferred property is stock the transferor spouse redeemed incident to a divorce. In such redemptions the transferor spouse receives the proceeds, but the nontransferor spouse may be liable for the tax on any appreciation due to the constructive dividend rules. For example a spouse not involved in the business may get stock in a divorce and redeem those shares. He or she gets the proceeds and the nontransferor spouse gets the taxable income.

On January 13, 2003, the Treasury Department issued regulations section 1.1041-2 addressing stock redemptions during marriage or incident to a divorce. The new regulations are limited to stock redemptions; other third-party transfers continue to fall under Q&A 9.

Under the new regulations

* Stock redemptions not resulting in a constructive dividend to the nontransferor spouse (under applicable tax law) will be treated as redemptions by the transferor spouse, who will be liable for any tax consequences.

* Stock redemptions that do result in a constructive dividend to the nontransferor spouse will be treated as such, and that spouse will be liable for any tax consequences.

The new regulations put third-party transfers under the constructive dividend rules and remove stock redemptions from Q&A 9 and the troublesome "on behalf of" standard. This assures only one spouse will be taxed, preventing the "whipsaw" that occurred in Arnes. There, neither spouse was taxed when different courts heard the two cases (see "Avoiding Third-Party Transfers in a Divorce," Jof A, Jan. …

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