dissenting: In its majority opinion, the Court reaffirms its earlier decisions with respect to what constitutes payment within the meaning of section 404(a) notwithstanding that three of those decisions have been rejected by Courts of Appeals for the 3d, 9th, and 10th Circuits. See Sachs v. Commissioner, 208 F. 2d 313 (C.A. 3, 1953); Time Oil Co. v. Commissioner, 258 F. 2d 237 (C.A. 9, 1958); and Wasatch Chemical Co. v. Commissioner, 313 F. 2d 843 (C.A. 10, 1963).
More than 10 years have elapsed since the most recent of those cases, during which time the Congress has considered several major revisions of the internal revenue laws and numerous technical amendments without addressing itself to this question. As pointed out in the majority opinion, a restriction upon the use of obligations of the employer as payments to a qualified pension plan was finally incorporated in H.E. 2, different versions of which were passed by the House and the Senate in this the 93d Congress, which are presently pending before a House-Senate conference. Bather than conclude that this belated action on the part of the Congress warrants the reaffirmance by this Court of a position previously rejected by the three appellate courts, I would conclude the opposite.
Notwithstanding the concept that this Court has assumed the role of a “national court” in questions involving the internal revenue laws, we must recognize that the appellate courts are also entitled to make such determinations. At some stage, we must be willing to accept a reversal of our position, even though we may not be wholly convinced of our error. In this situation, I think that we have passed beyond that point. After three reversals and the lapse of more than 10 years, taxpayers should be entitled .to rely upon the decisions of the appellate courts.
Hall, J., agrees with this dissent.