dissenting: I dissent from the majority opinion herein for the reason that I am unable to accept its reasoning and also can see no substantial distinction between this case and Estate of Boies C. Hart, 11 T. C. 16, in any determinative fact.
The majority opinion is disturbed because the insurance policy might inure to the benefit of others than the divorced spouse. Under the facts herein, that could only occur by the death or remarriage of the divorced spouse. It is- our opinion that if the divorced spouse receives an annuity during her entire life from the insurance policy after her agreement so to do has been scrutinized by both her own attorney and the judge having control over the alimony proceeding, the chance of her being imposed upon by not receiving the complete avails of the insurance policy for the use of her estate after her death is not a sufficient reason to argue that she has not received sufficient benefit from the insurance trust.
The majority opinion anticipates that in spite of the necessity for court approval of the alimony payments there is a possibility that in some future case some derelict husband might either impose upon his defenseless wife or enter into collusion with his wife for the purpose of building up an insurance estate for himself and taxing the same to the wife. A sufficient answer to this unhappy contemplation is that if a case should come before this Court showing fraud or tax evasion, we would then have a case which could be distinguished on the facts from the Hart case. Nothing of that kind, however, exists in the case at bar.
The fact, furthermore, that the wife might destroy the insurance trust by her own remarriage is a future event entirely within her own control and no injustice is imposed upon her by such a contingency. The facts in this case on the exclusiveness of the divorced spouse’s beneficial rights under the insurance trust are more favorable to the petitioner than they were to the taxpayer in the Hart case, because in that case it was expressly provided that others besides the divorced wife might possibly benefit from the avails of the insurance policy during the life of the wife.
The fact that in the Hart case the divorced spouse had the privilege of diverting a portion of the amount agreed to be paid by her former husband for insurance into her own purse by directing that the amount of insurance be reduced and the premiums thus saved paid to her is not a basis of distinction between the Hart case and the one at bar. In the Hart case the payments to the wife were to be 38y2 per cent of her former husband’s annual income and the 38y2 per cent was to include the payments for the insurance premiums. Thus, her support payments were of an indefinite nature and it was only fair that she should have the right, in the event her support payments became greatly reduced, to increase those payments by diverting some of the cash used for insurance.
In the case at bar the payments are a fixed and definite amount, $100 per week, and the amount of insurance is also a fixed and definite amount, $65,000. The computation of the premiums on this insurance was definitely ascertainable. If those premiums had been made payable by the husband to the wife under an agreement that they should be paid by her for the insurance premiums in order to procure her own life annuity, even though the reversionary interest might have been reserved to her husband’s estate, no question could be raised as to their deductibility from the husband’s income, and under Regulations 111, section 29.22 (k)-1 (b), it is a matter of no consequence whether the receipts by the wife from the husband are transmitted directly or indirectly. The regulation reads as follows:
(b) Alimony Income Attributable to Property. — The full amount of periodic payments received under the circumstances described in section 22 (k) is required to be included in the gross income of the recipient whether such ¿mounts are derived, in whole or in part, from the income received and accrued by the source to which such payments are attributable. Thus, it matters not that such payments are attributable to property in trust, to life insurance, endowment, or annuity contracts or to other interest in property, or are paid directly or indirectly by the obligor husband from his income or capital. [Italics supplied.]
Whatever factual distinction exists between the case at bar and the Boies Hart case, supra, would seem to indicate that the petitioner herein has a stronger case on the facts than did the taxpayer in the Boies Hart case. The latter case was promulgated by this Court without dissent and has been acquiesced in by the Commissioner. C. B. 1949-6-13037. We can see no basis for disavowing the principles of the Hart case at this time.