concurring:
I agree with the court’s characterization of the interest in the VAY assets received by Mollie Yonadi in the divorce and with its conclusion that Mollie became responsible on the sale of that interest for the tax attributable to the appreciation in its value. However, I do not understand resolution of the issue before us to turn on whether the interest in the VAY assets received by Mollie in the divorce is more like an ownership interest than a promise to pay money in the future.1
The Yonadis’ divorce occurred before 1984 and the controlling law here is that articulated in United States v. Davis, 370 U.S. 65, 82 S.Ct. 1190, 8 L.Ed.2d 335 (1962). Accordingly, I believe the result here must turn on whether, under New Jersey law, Mollie’s in*1301terest in the Yonadis’ marital property immediately prior to the transfer directed by the divorce decree was like that of a co-owner. If so, the transfer to her of an interest in the VAY assets at the time of her divorce was a non-taxable division of property, she thereafter held the interest assigned to her with a carryover basis, and upon the sale of the VAY assets, she became liable for the capital gains tax on the difference between the cash she received and the carried-over share of Vincent’s basis in those assets attributable to her interest. Thus, if the court is right that “Mollie’s interest resulted from a division of property that can be characterized as already eo-owned by her and Vincent before the divorce,” Maj. Op. at 1300, they are also correct in concluding that she is responsible for the tax here at issue. Serianni v. Commissioner, 765 F.2d 1051 (11th Cir.1985) (applying Florida law); Bosch v. United States, 590 F.2d 165 (5th Cir.1979) (applying Florida law), cert. denied, 444 U.S. 1044, 100 S.Ct. 731, 62 L.Ed.2d 730 (1980); Imel v. United States, 523 F.2d 853 (10th Cir.1975) (applying Colorado law); Collins v. Commissioner, 412 F.2d 211 (10th Cir.1969) (applying Oklahoma law); McIntosh v. Commissioner, 85 T.C. 31 (1985) (applying Montana law).
On the other hand, if Mollie’s interest in the marital property under New Jersey law immediately before her divorce was not like that of a co-owner, the interest she received in the VAY assets in the divorce was consideration for the release of independent marital rights she had with respect to her husband, the transfer of that interest was a taxable event for her husband, and she thereafter held that interest with a basis equal to the fair market value of that interest at the date of the transfer. E.g., United States v. Davis, 370 U.S. 65, 82 S.Ct. 1190, 8 L.Ed.2d 335 (1962); Cook v. United States, 904 F.2d 107 (1st Cir.1990). I do not understand Vincent, Mollie or the Commissioner to contend that Mollie’s receipt of her interest in the VAY assets was a taxable event for Mollie. It follows that however one characterizes that interest — be it an ownership interest or a promise to pay in the future — Mollie became hable upon the sale of the VAY assets for the capital gains tax on the difference between what she received upon the salé of the VAY assets and the value of the interest she received at the time of her divorce.
This leaves the difficult issue — the nature of Mollie’s interest in the Yonadis’ marital property under New Jersey law at the time of her divorce. The Commissioner takes the position, and understands the Tax Court to have taken the position, “that New Jersey law [i.e., N.J.StatAnn. 2A:34-23] contemplates a type of co-ownership between spouses during marriage.” Commissioner’s Br. at 22. While I think the issue is a close one, I conclude that Mollie’s interest in the marital property was sufficiently like an ownership interest to make the relevant segment of the divorce decree a division of jointly held property.
The operative provision of the New Jersey statute provides:
In all actions where a judgment of divorce or divorce from bed and board is entered the court may make such award or awards to the parties, in addition to alimony and maintenance, to effectuate an equitable distribution of the property which was legally and beneficially acquired by them or either of them during the marriage.
N.J.StatAnn. § 2A:34-23 (West 1993 Supp.).
All three branches of the New Jersey government have characterized this provision of New Jersey’s divorce law and the related provisions regarding “equitable distribution” in a manner starkly contrary to the U.S. Supreme Court’s characterization of Delaware divorce law in Davis. The Governor’s Reconsideration and Recommendation Statement regarding a 1983 amendment to the statute refers to property subject to equitable distribution under the statute as “joint assets.” Statement regarding Assembly, No. 1896-L.1983, c. 519, reprinted in N.J.Stat. Ann. § 2A:34-23 (West 1987). A state Senate Judiciary Committee Statement implies that property which is subject to equitable distribution is “a marital asset under the partnership concept of marriage.” Statement regarding Assembly, No. 1229-L.1980, c. 181, reprinted in N.J.StatAnn. § 2A:34-23 (West 1987). The New Jersey Supreme Court expounded on its view of the effect of *1302the statute in two 1974 opinions. In Rothman v. Rothman, 65 N.J. 219, 320 A.2d 496, 501-02 (1974), the court wrote:
[The Act] gives recognition to the essential supportive role played by the wife in the home, acknowledging that as homemaker, wife and mother she should clearly be entitled to a share of family assets accumulated during the marriage. Thus the division of property upon divorce is responsive to the concept that marriage is a shared enterprise, a joint undertaking, that in many ways it is akin to a partnership. Only if it is clearly understood that far more than economic factors are involved, will the resulting distribution be equitable within the true intent and meaning of the statute.
In Chalmers v. Chalmers, 65 N.J. 186, 320 A.2d 478, 483 (1974), the court further explained:
[T]he statutory provision for equitable distribution of property is merely the recognition that each spouse contributes something to the establishment of the marital estate [footnote omitted] even though one or the other may actually acquire the particular property. Therefore, when the parties become divorced, each spouse should receive his or her fair share of what has been accumulated during the marriage.... [A]ll that is being effected is the allocation to each party of what really belongs to him or her.
Based on this view of New Jersey law and the analysis I have set forth, I too would reverse the judgments of the Tax Court in both cases and remand for further proceedings consistent with this concurring opinion.
. The court does not explain, and I do not understand, how the character of the interest received by Mollie at the time of her divorce can possibly control the issue of whether she is taxable at some point in time for the capital gains tax on pre-divorce appreciation in the VAY assets. I can conceive that, if Mollie had received cash or a cash equivalent in return for a surrender of her interest in marital property, that fact might affect the time at which she would have to realize the pre-divorce appreciation for income tax purposes. But I find it difficult to understand how the character of what she received could determine whether or not she is responsible for that appreciation assuming that she was a co-owner of the marital property.