dissenting: The petitioner contends that the premiums paid by it in the amounts of $400,008.84 in 1940 and $575,206.43 in 1941 upon a group annuity policy to the Sun Life Assurance Co. of Canada are deductible from gross income as “Ordinary and necessary” expenses of operation. The premiums paid on this policy in the years 1936 to 1939, inclusive, in the respective amounts of $486,389.26, $359,803.71, $99,930.71, and $132,251.57 were apparently allowed by the respondent as legal deductions from gross income. In my opinion there is no more reason for the respondent to question the deduction of the amounts paid in the taxable years before us than in prior years. The respondent does not contend that the amount of the premium paid in 1940, together with other amounts paid as compensation to the employees, was in excess of reasonable compensation for services rendered. And for the year 1941 the respondent has determined only that the amounts of the premium paid on the policy plus the $1,000,000 paid to the Cleveland Trust Co. as trustee constitute unreasonable compensation for services rendered during those two years. I do not think there is any more ground for questioning the reasonableness of compensation for 1941, so far as the premium is concerned, than for the year 1940.
The premiums paid on this policy were for the benefit of the petitioner’s employees. The employees knew that they were the beneficiaries under the policy. The premiums paid constituted incentive compensation to them. That such incentive compensation was effective in obtaining unusual efforts on the part of the employees is abundantly shown by the record. The profits from operation were enormous.
In my opinion it should be the policy of the Government not to question the amounts of incentive compensation paid to nonstockholder employees. Such incentive compensation inures to the benefit of the employees, avoids labor, disputes, and in the instant case greatly increased the output of and the profits of the corporation.
I do not think the fact that the employees are not taxable during the taxable years upon any part of the premiums paid to the insurance company is relevant in this case. Cf. Commissioner v. Bonwit (C. C. A., 2d Cir.), 87 Fed. (2d) 764; Gisholt Machine Co., 4 T. C. 699; Phillips H. Lord, Inc., 1 T. C. 286.
Nor do I think it is material that an employee may lose some of his benefits under the insurance contract if he ceases to be an employee. The petitioner can never recover any part of the premiums which it has paid upon the policies. The benefits lost by the employee upon severance of his relations with the company accrue to other employees. I therefore am of the opinion that the amounts constitute legal deductions from gross income as ordinary and necessary expenses of operation.
The payment of $1,000,000 to the Cleveland Trust Co. as trustee in December 1941 seems to me to fall in a different category. It is quite clear that this payment was made by the petitioner in consideration of the fact that it would greatly reduce its excess profits tax for 1941. The respondent has determined that the payment (added to other compensation paid) was in excess of reasonable compensation for services rendered and I am.of the opinion that the evidence does not disprove his determination. I therefore concur in the opinion so far as it disallows the deduction from gross income of 1941 of the $1,000,000 in question.