dissenting: I agree with the principles enunciated by Judge Pierce in his dissenting opinion. I do not believe the $7,500 contributed by Marjorie War dwell was intended as anything other than a contribution. She agreed to pay $95 per month, plus infirmary charges, for the care and services furnished her by Friendship Haven. The majority opinion find as a fact that the maintenance cost of members was $95 per month and that sums paid by way of room endowments and $30 of the monthly sums paid by non-room endowers went into a building fund. The latter is a charitable purpose for which large sums of money are contributed each year without their deducti-bility being questioned — indeed it would probably be very difficult for charitable organizations to obtain sufficient funds for building purposes if such contributions were not deductible.
I do not think the fact that Marjorie War dwell may have been given a preference as to room and admission should convert what seems to me to qualify as a charitable contribution under the definition thereof contained in section 170(c), I.R.C. 1954, into some other type of nondeductible expenditure. The statute does not mention “consideration,” legal or otherwise. While I doubt the applicability of the Duberstein case (363 U.S. 278), which was concerned with whether a specific transfer to a taxpayer amounted to a gift so as to be ex-cludible from the recipient’s gross income as property acquired by gift, to a case involving the deductibility of charitable contributions, I do not think the $7,500 was contributed here primarily for an anticipated benefit to Marjorie Wardwell “of an economic nature” or for services to be rendered.
To hold, as does the majority here, that this endowment is not a deductible charitable contribution would defeat the purpose of Congress to encourage gifts and contributions to charitable organizations. See S. Kept. No. 1567,75th Cong., 3d Sess. (1938), p. 14. I respectfully dissent.
FORRESTER, J., agrees with this dissent.