Family Law

Family Law News Issue 1, 2014, Volume 36, No. 1

Davis, Fonstein, Epstein & IRC §1041—A History of "Immediate and Specific"

Judge Edward B. (Ned) Huntington

Judge Edward B. (Ned) Huntington is a retired San Diego Superior Court Judge who served more than half of his judicial careeras a Family Court Judge in San Diego and in North San Diego County. Prior to his appointment by Governor Wilson, Huntington practiced Family Law and Taxation for28 years. As an attorney, he was California Board Certified in both Family Law and Tax Law. To date the only lawyer double certified in those specific areas. He received his BS degree in Accounting from San Diego State, his JD degree from the University of California, Hasting College of Law and his LL.M. in Taxation from University of San Diego’s Graduate Tax Program. He is a long time member of both the Family Law and Tax Sections of the Bar Association. In 1988 he was President of the San Diego County Bar Association and from 1991 to 1994, he served on the California State Bar Board of Governors and chaired the Discipline Committee. He loves boating, family, yellow labs, fishing, skiing and golfing.

In the Beginning

Back in the dark ages, when Steve Kolodny was a young lawyer who had yet to shave or file a 200 question get-acquainted demand letter; and Jaffe & Clemens was a Rock Band playing in the Haight/Ashbury District; and Don Gursey was still operating under the original Internal Revenue Code of 1913 (he may still be), the rules of taxation in a divorce case (and yes, it was still called a "divorce" in the good old days) were few and far between. The court could only consider the relevance of taxes if those taxes were immediate and specific. In spite of significant changes in divorce tax law, the rules of "immediate and specific" remain an important part of calculating the division of Community Property. In those bygone days, the ultimate effects of taxation on the transfer of property in a divorce were governed by the general principals of the law of taxation between two unrelated persons transferring property. If a transfer of property was not immediate and specific, then the court could not consider any possible tax consequences. If taxation was to be immediate and specific and a gain was realized, then possible tax consequences had to be considered.

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