IRC 1041 (Explained: All You Need To Know)

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What rule applies to the transfer of property between spouses?

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What Is IRC 1041

IRC 1041 refers to the Internal Revenue Code Section 1041.

The general rule that applies under the tax code 1041 is that no gains or losses should be recognized when an individual makes a transfer of property to another when the individuals are spouses or were former spouses and the transfer is in the context of a divorce.

In other words, Section 1041 Internal Revenue Code states that when a spouse transfers property to another spouse, the transaction should be free of income taxes.

IRC 1041 General Rule

IRC 1041 Overview

Section 1041 of the Internal Revenue Code is composed of five paragraphs as follows:

• Section 1041(a): General rule on transfers
• Section 1041(b): Transfers treated as gift 
• Section 1041(c): Transfer incident to divorce
• Section 1041(d): Special rule when a spouse is a nonresident alien
• Section 1041(e): Transfers in trust where the liability exceeds the basis

How Does IRS Section 1041 Work

Income-Tax Free Transfers

The main objective of IRS Code 1041 is to make a transfer of property between spouses tax-free.

Particularly, when a spouse transfers property to another spouse, “no gain or loss shall be recognized”.

This rule applies if the transfer of property is being made directly to another spouse or to a trust for the benefit of the spouse.

Former Spouses

Similarly, a transfer of property between former spouses and incident to a divorce will also be tax-free.

Section 1041(c) states that a property transfer is considered incident to divorce if the transfer occurs within 1 year after the date the marriage has ceased or is related to the cessation of the marriage.

Nonresident Aliens

Spouses or former spouses that are nonresident aliens will not be able to take advantage of this rule as IRS Code 1041 specifically excludes them.

In essence, if the person making the transfer is a nonresident alien, the general rule in 1041 A will not apply.

Transferee Tax Basis

When a transfer of property is done between spouses, the transfer will be considered as if the receiving spouse obtained a gift.

Section 1041(b)(1) states that the “property shall be treated as acquired by the transferee by gift”.

Then, the “basis of the transferee in the property shall be adjusted basis of the transferor”.

For example, if a husband transfers property, having a basis of $25,000, to his wife, then the wife’s basis in the property will also be $25,000.

IRC Section 1041 Takeaways 

What is 26 USC 1041?

How does it work?

26 U.S. Code § 1041 is titled “Transfers of property between spouses or incident to divorce” and it sets out the general rule that a wife and husband should not recognize any gains or losses when doing a transfer of property among themselves.

A transfer of property between spouses will be considered as a gift and the transferee’s basis will be the adjusted basis of the transferor.

The same general rule outlined in Code Section 1041 applies to “former spouses” provided the transfer is incident to divorce (i.e. the transfer is done within a year from the date the marriage ended or related to the cessation of the marriage).

The exception that is called out in IRC 1041 is that spouses (or former spouses) cannot take advantage of this rule if the individual making the transfer is a nonresident alien.

Let’s look at a summary of our findings.

Understanding IRC 1041

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