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Transfers of Property

The Domestic Relations Tax Reform Act of 1984 changed the prior rule of law concerning transfers of property between spouses upon divorce so that divorce related transfers after July 18, 1984 are treated as gifts which result in neither gain nor loss to either party and have no tax consequences.

According to the Act, if a transfer of property between spouses or between former spouses is incident to a divorce, neither gain nor loss will be recognized for income tax purposes. I.R.A. §§ 1041(a)(1) and 1041(a)(2). However, in order for transfers between spouses to not result in a gain to one spouse or a loss to another for tax purposes, the transfer must be “incident to divorce” or it must be “related to the cessation of the marriage.” A transfer is “incident to divorce” if it occurs within one year after the date of dissolution of the marriage. A transfer is “related to the cessation of the marriage” if it is pursuant to a divorce or separation agreement and it occurs no later than six years after the date of dissolution of the marriage. See I.R.A. §1041(a) and Temp. Reg. §1.1041-1T(b). In essence, this means that the parties to a divorce action have a certain window of time in which to complete transfers related to the divorce before such transfers will be treated as taxable gains or as losses on the parties’ income tax returns. According to the Act, the transferred asset will only be treated as a gain to the transferee once, or if, the property is ultimately sold. Temp. Reg. §1.1041-1T(d).

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