dissenting: I am unable to agree with the conclusion reached by the majority opinion.
It seems to me that there is but little difference in the contracts here involved from those which were present in Bodine v. Commissioner, 103 Fed. (2d) 982; certiorari denied, 308 U. S. 576; and Commissioner v. Meyer, 139 Fed. (2d) 256, affirming Tax Court memorandum opinion of June 4,1942.
The Meyer case involved the taxable years 1937 and 1938, which were years subsequent to the amendments of the Revenue Act of 1934, upon which the majority opinion lays considerable stress. In the Meyer case, the Circuit Court, in affirming our decision, which was in favor of the taxpayer, said:
Petitioner’s [the Commissioner’s] contention is that respondent [the'taxpayer] delivered to the insurance company $55,000 and as consideration therefor the insurance company obligated itself to pay to the respondent interest by the way of an annuity during his life and the principal sum of $50,000 to his wife at his death, and that the bi-section of the agreement into the form of a life insurance policy and an annuity is to be ignored. This contention must be denied. To adopt it leads us into the field of unrealities.
In the instant case the majority opinion sustains the contention of the Commissioner, which in my judgment is essentially the same as the court in affirming our memorandum opinion in the Meyer case said should not be adopted, but should be rejected. I, therefore, respectfully dissent.