dissenting: I disagree with the majority opinion because it seems to me apparent that, when the taxpayer corporation paid 58.3 per cent of $8,649.73, or $5,040.79 in 1943, and 53.2 per cent of $9,417.72, or $5,010.63, in 1944 to buy an annuity for two corporate officers who owned all the corporate stock, while the remainder of the pension fund was divided among annuities for six nonstockholding employees, the benefit of the insurance plan did “discriminate in favor of employees who were officers, shareholders, persons whose principal duties consisted of supervising the work of other employees, or highly compensated employees,” contrary to the interdiction of section 165 (a) (4) of the Internal Revenue Code.
To arrive at such a conclusion, it is not necessary to rely upon or apply I. T. 3674,1944 C. B. 315. An examination of the statute itself is sufficient. In each of the taxable years Yolckening, Inc., paid out over $5,000 of its income free of taxation, to give substantial annuities to its president and its president’s wife, the corporate secretary, who together owned all the corporate stock. These annuities were received by the beneficiaries also without having to pay any individual income tax on the money used in their procurement. The opinion states in effect that this was not discrimination in favor of the president because he earned $20,000 a year and could not get an annuity of 30 per cent of that salary, whereas all employees getting under $8,000 a year would receive an annuity equal to 30 per cent of their salary.
We are persuaded that the value of the annuity depends upon the amount of money paid by the insurance company to the beneficiary and not upon the ratio of that amount to the beneficiary’s prior salary. When the president got an annuity of $2,400, he got just what the corporation paid for, just as the other employees received annuities in amounts covered by the premiums paid by the corporation.
Section 165 (a) (4) of the code, in discussing discriminations, was certainly not interested in the ratio between the amount of the annuity to the salary of the annuitant. That section of the code was vitally interested in corporate discriminations whereby an undue proportion of the pension fund was expended for annuities of corporate stockholders, officers, and high salaried employees as against the amount of annuities paid out for ordinary employees who were not stockholders.
In the case at bar, where only two high salaried office-holding stockholders procured the benefit of more than one-half of the money paid for insurance to all of the corporate employees, it seems to me that discrimination is evident.