Stock Cost basis calculation on transfers between spouses

[yj0]

Assume I have a stock which per share cost basis is $10, I transferred it to my spouse, broker has considered it as gift.  Now its fair market value(FMV) becomes $8. my spouse transfer that stock back to me. I sold it at $8.  If consider these transfers as gift, then the cost basis of the share is $8 (uses FMV if lower than the actual cost basis), and thus I cannot claim loss ($2).  However since the transfer happens between spouses, can I still use the original cost basis $10 and claim the $2 loss?

[tagteam · Accepted solution]

Your broker does not determine whether the transfer is a gift.

Read the code section at the link below.

See https://www.law.cornell.edu/uscode/text/26/1041

[yj0]

You mean 1041(b) ? 

[tagteam]

Yes, your basis does not change regardless of what you call the transfer.

[Mike9241]

find a different broker.   this one certainly doesn't know the tax laws and that can be costly.  it's not only your broker, it could be the firm itself.

wonder what would have been done if you had two fully taxable accounts and moved securities between them. 

wonder what would have been done if the FMV was $100 and sold for $100 - 

[yj0]

Reply to Mike9241:

I don't think they have the same problem when the name of the account is same. Also I assume brokers do not have the responsibilities to understand customer's tax responsibilities ?