dissenting: I respectfully dissent. The practical effect of the reasoning of the majority, and of the regulation and rulings they uphold, is to make it virtually impossible for a small corporation whose owners are actively engaged in the management of the business to adopt a profit-sharing plan or trust to fund a retirement plan for all of its eligible employees, using years of past service as one of the factors for determining the allocation of contributions and benefits. This is because in a small corporation the officers and stockholders are usually the people who started the business and have the greater years of service. Consequently, if years of past service are taken into consideration in determining allocation of the contributions and all other factors are equal, the share of the contributions allocated to the employees with the greatest length of service will usually represent a greater percentage of their compensation during the earlier years of the plan than will the share allocated to employees with less years of service. However, unless the plan is terminated early or the profits contributed are reduced in later years, the proportions should even out over the long term.
Thus the rule of discrimination, even a “little” discrimination, imposed by the regulations, with respect to profit-sharing plans, and approved by the majority, would make use of past service as a factor in determining the allocation of contributions automatically discriminatory in the case of most small corporations. Yet in most retirement plans years of service, whether rendered before or after adoption of the plan, is, and in my opinion should be, one of the principal factors in determining retirement benefits; and I do not believe Congress intended that the use of this factor would produce discrimination of the type prohibited by the statute. It is usually just as necessary under a profit-sharing plan as it is under a pension plan that a larger part of the employer’s contributions in the earlier years of the plan, proportionate to the employees’ compensation or otherwise, be allocated to the older employees in order to fund their retirement benefits prior to retirement age.1
There is no indication in the majority opinion that this plan was not intended to be permanent or that the allocation formula was adopted in order to discriminate in favor of McMenamy. 'Other safeguards may be required to prevent discrimination in favor of the prohibited group under profit-sharing plans adopted by small corporations but I cannot agree with the regulations and the majority opinion in this case that giving credit for past service should automatically disqualify the plan simply because it results in allocation of a larger proportion of the contributions, relative to their compensation, to employees within the prohibited group in the earlier years of the plan. Speculation over a premature termination of the plan does not justify the disqualification of the plan at its inception.
I would conclude that this plan was not discriminatory in favor of the prohibited group.
I find support for my conclusion in Ryan School Retirement Trust, 24 T.C. 127, and I do not believe the efforts of the majority to distinguish that case are valid. In that opinion, which was reviewed by the entire Court, we said, at page 134:
We think that discrimination within the meaning of the statute embodies some real preferential treatment in favor of the officers as against the rank and file employees. That kind of discrimination is not present here, however, because no provision of the plan itself was inherently discriminatory, nor was there any ulterior motive to frame its provisions to channel the ma.ior part of the funds to the officer group because of any events or circumstances which the management foresaw or expected to occur. * * *Sterrett, J., agrees with this dissent.
The regulations do not Impose the same rule on pension plans. I find no justification in the law, sec. 401 of which sets forth the same requirements for qualification for both pension and profit-sharing plans, for this distinction.