concurring: I agree with the majority result. I agree with Judge Chiechi that we need not express the view that the Ninth Circuit Court of Appeals incorrectly decided Arnes v. United States, 981 F.2d 456 (9th Cir. 1992).1 The majority having expressed that view, I agree with Judge Halpern that we are obliged to tell why, and this the majority opinion does not do.2
Inasmuch as the majority have put the ball in play, and Judge Halpern having brought it to mid-court, I write separately to express my view of how section 1041 should be interpreted and confined in its application to redemptions of the stock of closely held corporations.
I believe there is an interpretation of section 1041 that will properly harmonize the treatment of the remaining spouse and the terminating spouse, both in consolidated cases and where their cases are decided separately. Under a proper interpretation of section 1041 and respondent’s regulation, no redemption should be considered to be “on behalf of” the remaining spouse unless it discharges that spouse’s primary and unconditional obligation to purchase the subject stock, as summarized and set forth in the examples in Rev. Rul. 69-608, 1969-1 C.B. 42, and the case law on which it relies. See, e.g., Kobacker v. Commissioner, 37 T.C. 882, 896 (1962); Edenfield v. Commissioner, 19 T.C. 13, 20-21 (1952); S.K. Ames, Inc. v. Commissioner, 46 B.T.A. 1020, 1023-1024 (1942); see also Edler v. Commissioner, 727 F.2d 857 (9th Cir. 1984), affg. T.C. Memo. 1982-67. If this condition is satisfied, there will be nonrecognition of gain to the terminating spouse under section 1041 and, under the authorities cited above, dividend treatment of the remaining spouse. See Hayes v. Commissioner, 101 T.C. 593, 597, 602 n.9, 605 n.11 (1993), and cases cited therein. If, as in the case at hand, this condition is not satisfied, the terminating spouse will recognize gain from a sale or exchange on the redemption, and the remaining spouse will have no gain or dividend income. Edler v. Commissioner, supra.
Irrespective of whether the marriage was dissolved in a “romantic waltz” or a “violent apache dance”, Estate of Glen v. Commissioner, 45 T.C. 323, 353 (1966) (Tannenwald, J., dissenting),3 respondent should exert every effort to cause the resulting tax cases to be consolidated. If respondent doesn’t see to it that the former spouses’ tax cases are consolidated,4 or, as should have occurred in Arnes v. United States, supra, brought together on the appeals from this Court and a District Court, there is an unnecessary risk of whipsaw or double taxation. See generally Special Committee on Whipsaw, Section of Taxation, American Bar Association, “Final Report”, 30 Tax Law. 127 (1976). Our recent opinion in Hayes v. Commissioner, supra, is the model for the presentation and disposition of such cases. See also Gaughan v. Commissioner, T.C. Memo. 1993—320.
Halpern, J., agrees with this concurring opinion.For a laudatory comment from the redeemed spouse’s point of view, see Preston & Hart, “Spouse’s Stock in a Divorce Can Be Redeemed Tax Free”, 78 J. Taxn. 360 (1993).
What the majority seem to say is that the Court of Appeals in Arnes v. United States, 981 F.2d 456 (9th Cir. 1992), in holding that the terminating spouse whose stock was redeemed was entitled to nonrecognition of gain under sec. 1041, overexpansively equated any “benefit” to the remaining shareholder spouse with the redemption being on his behalf for the purpose of Q&A 9 of sec. 1.1041-1T, Temporary Income Tax Regs., 49 Fed. Reg. 34453 (Aug. 31,1984).
See Young, “Separation and Divorce and the Tax Laws: ‘Waltzes’ and ‘Apache Dances’ ”, 22 Tax Law. 551, 572-577 (1969).
There is no indication in the record how Mr. Blatt’s tax case was handled, or whether respondent ever even determined a deficiency against him with respect to the transaction at issue in this case.