dissenting: Stripped of verbiage the agreement here in question provided that the petitioner should in any event receive 8 percent per annum on the balance of its advances to the insurance company, and the facts show that $6,235.44 of the $6,7Q4.66 which had accrued under the agreement represented 8 percent on such balances for the years 1930 through 1939. Such being the facts, the sound conclusion, in my opinion, would be that at least $6,235.44 of the amount accrued was interest. See and compare Manhattan Mutual Life Insurance Co., 37 B. T. A. 1041. It is true that under the agreement the payments by the insurance company, whether of the 8 percent on the balance of the advances or the 2 percent of gross premiums, were not required to be in cash if such payments in “any year should jeopardize the solvency or sound financial condition” of the insurance company. In that circumstance, however, the insurance company was not relieved of its obligation to make the said payments, but, in the alternative, had the privilege of issuing certificates of indebtedness therefor. There does seem to have been some limitation on the amount of such certificates that might be outstanding at any one time, but I do not understand that there was any showing or claim that such limit was ever reached or even approached. Furthermore, it is to be noted that the obligation of the insurance company to pay a minimum of 8 percent on the balances advanced is to continue “until payment in full * * * of all Certificates of Indebtedness issued by it” to petitioner. Under the circumstances here, I am unable to conclude, as the majority does, that the $6,135 paid in the taxable year on the $6,704.66, accrued as above stated, was not interest, and for that reason respectfully note my dissent.
Disney and Oppeb, JJ., agree with this dissent.