Published Articles

Footnotes

1. I.R.C. Section 1041(c).
2. Generally, a divorce decree, a separation agreement, or similar instruments. See Section 71(b)(2).
3. I.R.C. Temp. Reg. Section 1.1041-1 T(b) Q&A-6&7 (1997).
4. I.R.C. Section 1041(b).
5. I.R.C. Section 61(a)(3).
6. I.R.C. Section 1034(a)
7. Sheldon D. Pollack, J.D., Ph.D., "New Law Excludes Gain on Sale of Residence" 59 Tax Notes (TA) 188 (October 1997)
8. H.R. Conf. Rep. No. 2014, taxpayer Relief Bill of 1997, 68 (Released on July 31, 1997).
9. I.R.C. Section 121(a)
10. I.R.C. Section 121 (b)(3)(A).
11. I.R.C. Section 121 (b)(3)(B).
12. I.R.C. Section 121 (b)(2)(A).
13. I.R.C. Section 121 (b)(2)(B).
14. I.R.C. Section 121 (b)(2)(C).
15. I.R.C. Section 121 (c)(2)(A) & (B).
16. I.R.C. Section 121 (c)(1)(A) & (B).
17. See note 2.
18. See Perry v. Commissioner, 91 F.3d 82 (9^th Cir. 1996) where a divorced spouse did not satisfy the occupancy and principal residence requirement when he moved out of the home and the former spouse retained possession/use of the home. The non-possessing spouse was denied Section 1034 rollover gain treatment.
19. Bruce L. Richman, C.P.A., C.V.A., "Taxpayer Relief Act of 1997: A Summary of Provisions Affecting the Divorce Practitioner", American Journal of Family Law, Winter 1997, Vol 11, No.4, 213, 215 (1997).
20. Sheldon D. Pollack, J.D., Ph.D., "New Law Excludes Gain on Sale of Residence", 59 Tax Notes (TA) 188 (October 1997).
21. 91 F.3d 82 (9^th Cir. 1996), affirmed Perry v. Commissioner, T.C. Memo 1994-247.
22. See Perry v. Commissioner, 91 F.3d 82 (9^th Cir. 1996).
23. Sheldon D. Pollack, J.D., Ph.D., ?New Law Excludes Gain on Sale of Residence?, 59 Tax Notes (TA) 188 (October 1997).
24. Sheldon D. Pollack, J.D., Ph.D., ?New Law Excludes Gain on Sale of Residence?, 59 Tax Notes (TA) 188 (October 1997).
25. Taxpayer Relief Act of 1997, Explanation, Exclusions and Fringe Benefits, Sale of a Principal Residence, Sec 129 at 153 (CCH) (1997).
26. Note, if such a transfer were not pursuant to a property settlement agreement or divorce decree, gift tax would be imposed upon the transferor spouse if the transfer occurred while the parties were actually divorced. However, transfers between spouses are generally free from gift tax due to the Section 2523(a) unlimited marital deduction. But 2516, provides that "if divorce occurs no more than one year before and two years after the parties enter into a written agreement, property transferred under such agreement is transferred for full and adequate consideration if the transfer is made as a settlement of marital or property rights. Thus, transfers between ex-spouses can escape gift tax if structured correctly". Hilari D. Pickett; Robert L. Gardner; Fred G. Streuling, "Maximizing Gain Exclusion/Deferral When Selling a Principal Residence Due to Death, Divorce or Marriage", 28 No. 2 The Tax Advisor at 90 (February 1997)
27. See Perry v. Commissioner, 91 F.3d 82 (9^th Cir. 1996); See Young v. Commissioner, 49 T.C.M. (CCH) 1002 (1985).
28. 121 (d)(3)(B) provides: "Solely for purposes of this section, an individual shall be treated as using property as such individual's principal residence during any period of ownership while such individual's spouse or former spouse is granted use of the property under a divorce or separation instrument (as defined in Section 71(b)(2))".
29. I.R.C. Section 121 (b)(3)(A) provides: "the exclusion shall not apply to any sale or exchange by the taxpayer if, during the 2 year period ending on the date of such sale or exchange, there was any other sale or exchange by the taxpayer to which subsection (a) applied".