dissenting: The facts stipulated by the parties, together with facts fairly to be inferred therefrom, are the facts of the case and are to be considered in the light of the pleadings and notice of deficiency.
In view of respondent’s determination “that salary continuation payments * * * paid to Mrs. Pierpont * * * by the Loewy Drug Co. in consideration of her deceased husband’s services to that corporation constitutes taxable income,” it is my opinion that we may fairly infer from the facts stipulated that the payments were in truth made “in recognition of the services rendered by the late Mervin G. Pier-pont” as recited in the resolution of the company’s board of directors, and not in consideration of any services rendered to the corporation by Lallah. In view of the stipulated facts that “the company was not legally obligated to pay anyone any amount as compensation for service rendered by the Decedent to the company” and “[s]aid payments made to * * * Lallah * * * were not made pursuant to any contract, plan, policy, practice or understanding made or in effect prior to the Decedent’s death,” we may fairly infer that the company did not act in order to itself derive benefit from these payments. Cf. Simpson v. United States, 261 F. 2d 497; Bausch's Estate v. Commissioner, 186 F. 2d 313. Since the payments here involved were not made pursuant to any obligation or understanding nor pursuant to any plan or policy, it is my opinion that we may infer that they were made pursuant to “spontaneous benevolence.”
A large number of cases decided by this tribunal and by the Courts of Appeals have held that payments such as those here involved are gifts and not taxable income to the payee widow. Among the more recent cases are Florence S. Bunts, 29 T.C. 647; Estate of Arthur W. Hellstrom, 24 T.C. 916; Bounds v. United States, 262 F. 2d 876.
In the Bunts case, supra at 650, we recapitulated the factors supporting the legal conclusion in the Hellstrom case that payments made by a corporation to the widow of a deceased officer were gifts, as follows: “* * * (1) the payments had been made to the wife of the deceased employee and not to his estate; (2) there was no obligation on the part of the corporation to pay any additional compensation to the deceased employee; (3) the corporation derived no benefit from the payment; (4) the wife of the deceased employee performed no services for the corporation; and (5) the services of her husband had been fully compensated.” All of those factors are present in the instant case.
It seems clear to me that the extant authorities would require a decision that under the facts of this case the payments made by the employer corporation to the widow of a deceased officer and employee constituted gifts, unless the recent opinion of the Supreme Court in Commissioner v. Duberstein, 363 U.S. 278, necessitates a different resuit. It is my opinion that the cases discussed by the Supreme Court in that opinion are so different factually from the instant case that we can derive little help from them in considering the question of whether payments made pursuant to no plan or policy by a corporation to the widow of a deceased officer or employee constitute gifts or taxable income. The Government advanced an argument before the Supreme Court in Duberstein which, if it had been accepted by the Supreme Court, might have necessitated a reconsideration by us of the cases cited above. However it was not accepted, and the opinion of the Supreme Court in Commissioner v. Duberstein, supra, would not seem to me to affect the validity of the prior opinions of this Court on the question of the taxability of payments by a corporation to widows of deceased officers and employees.
I, therefore, respectfully note my dissent.