dissenting: I dissent from the holding of the majority in this proceeding that any portion of the amounts of $81,747.68 and $175,292.12, representing so-called “ interest ” paid by the petitioner in the respective years 1926 and 1928 to beneficiaries upon the proceeds of ordinary life insurance policies which had matured by death of the insured and which had been left with the petitioner *853under Option D of the policies is deductible as interest under the Revenue Acts of 1926 and 1928. Each of these figures is made up in part of a sum calculated at 3 percent and in part of a sum calculated at 1.85 percent. The majority holds that the portion of those amounts which represents the 3 percent guaranteed so-called “ interest ” is deductible as interest under the revenue acts, but that the portion of such amounts representing the 1.85 percent additional so-called “ interest ” is not deductible under the statutes. No part of either amount is deductible under such acts as interest.
If, as held by the majority, the portion representing the 1.85 per cent is not deductible as interest, then, looking to substance and not to form, as we must do, the same reasoning requires a holding that no portion of either amount constitutes deductible interest. The holdings of the majority as to these two percentages are irreconcilable. The source and nature of the 3 percent and the 1.85 percent are the same. Speaking figuratively, they are cut out of the same cloth. Both came from surplus and both represent earnings or profits upon funds held by the petitioner. The denial of the deduction of the 1.85 percent is jutifiable only on the ground that it is in the nature of a distribution of earnings. The same is true of the 3 percent. Such earnings or profits of a mutual life insurance company, such as petitioner, operated upon a participating plan of insurance, are derived from numerous sources, including (1) “ saving in mortality ”, where the mortality conditions experienced prove to be more favorable than those assumed, (2) returns on investments, (3) “ profit from loading ” of premiums or, more simply stated, from overcharges in premiums, (4) surrender of policies, (5) lapse of policies, and (6) investment or capital transactions. All these earnings or profits go into what is termed “ surplus.”1 Three percent is the minimum amount which experience has shown that a well managed solvent life insurance company is thus able to earn and pay even under unfavorable conditions. The same experience has also shown that under normal conditions such a company can earn considerably in excess of 3 percent.2 The 1.85 percent herein involved represents excess over 3 percent. The payment of the full amount of 4.85 percent undoubtedly would have been assured under Option D except that the company could not be positive that 4.85 percent could be earned and paid. However, the fact that only 3 percent was assured does not mean that the company was not bound to pay more than that if more than that were earned and safely payable. Under the laws *854of Pennsylvania, tinder which the petitioner was organized, the petitioner may maintain a surplus or safety fund, hut the same may not be in excess of 10 per centum of its reserve, or $100,000, whichever is greater, and the excess of the market value of its securities over their book value.3 Furthermore, the laws of Pennsylvania require that all such policies shall contain a provision that the policy shall participate in the surplus of the company, while it remains in force.4 It is doubtful whether any state would permit petitioner to continue to issue policies therein if it did not pay over under Option D all it could earn and safely pay, which, in the instant proceeding, has been demonstrated to be at least 4.85 percent.
All the policies involved in the instant proceeding participated in surplus, and this is true as to both insured and beneficiaries. The ordinary life policy expressly provides that the 3 percent per annum payable under Option D shall be increased annually by such additions as may be awarded by the board of trustees. The rights of the beneficiary are such as are conferred primarily by the policy or contract of insurance. 37 Corpus Juris 577. When a beneficiary is named in a policy he is as much entitled to rely upon its provisions for the protection of his rights as the insured or the company. Taff v. Smith, 144 S. C. 306; 103 S. E. 551. All of the features of the policy in question from this standpoint inure to the benefit of the beneficiary. In Penn Mutual Life Insurance Co. v. Norcross, 163 Ind. 379; 72 N. E. 132, the Supreme Court of Indiana had under consideration a surplus participating policy of this petitioner. The court there held that where the policy had been delivered and had become effective, the beneficiary had an interest therein which could not be divested by the insured without her consent.
It is clear that the 1.85 percent did not constitute a purely voluntary payment as in effect held by the majority; but it was paid by virtue of a policy or contract obligation imposed by statute.
The holding of the majority that the 3 percent paid under Option D of the ordinary life policies is deductible as interest is irreconcilable with its holding that the 3 percent included as part of installments paid under ordinary life policies which had been converted to the installment basis of payment by the exercise of Option A therein is not deductible as interest. Both holdings of the majority pertain to the same type of policy, ordinary life, and the same 3 percent; upon the death of the insured, the proceeds of Option D and of *855Option A are each equivalent substantially to the proceeds of the face value of the policy and hence are equivalent substantially to each other; the factor of 3 percent is identical; and both holdings should be the same and to the effect that the 3 percent paid under Option D as well as the 3 percent paid under Option A is not deductible.
The holding of the majority that the 3 percent paid under Option D is deductible is also irreconcilable with its holding that the 3 percent included as part of installment payments made under trust certificate or installment policies is not deductible as interest. Upon the death of the insured the proceeds of this latter type of policy are identical with the proceeds of Option A under the ordinary life type; the factor of 3 percent is identical in the proceeds of each; and both holdings should be the same and to the effect that the 3 percent paid under Option D as well as the 3 percent paid under the trust certificate or installment type of policy is not deductible.
From the policy of this type in evidence it clearly appears that the $18,380, which is the cash surrender or “ lump sum ” value at the date of death of the insured, is the sum which at 3 percent so-called compound “ interest ” will return a total of $24,000 to the beneficiary when paid in 240 equal monthly installments of $100 each.
Under all of the petitioner’s policies, in evidence here, participating as to policyholders or beneficiaries, or both, the amounts ultimately received under the various options or provisions are all the equivalent substantially of the face value or of the present worth or commuted value at the date of death.5 Otherwise there would be unjustifiable discrimination between participating policies of a mutual life insurance company.
Options A and D are each equivalent to the face value of the policy and therefore A is equivalent to D. Since no part of the installment payments made by petitioner to beneficiaries under Option A of ordinary life policies (or under trust certificate or installment policies) constitutes interest, as the majority correctly holds, then no part of the payments made under Option D is interest.
Likewise, the holding of the majority that the so-called “ interest ” paid upon deferred dividends under the ordinary life accumulated surplus plan policies is not deductible is irreconcilable with its holding that the 3 percent paid under Option D is deductible. The majority bases its holding as to so-called “ interest ” upon these deferred dividends upon the ground that there is no indebtedness be*856cause there is no certainty as to who will survive and ultimately receive all of the deferred dividends. However, it may be pointed out that there is even more uncertainty as to who will ultimately receive all of the proceeds left with the company under Option D. To illustrate, the proceeds in whole or in part may be payable to a person or persons not yet born at the time of the death of the insured.
It has been held that whether and to what extent deductions shall be allowed depends upon legislative grace; and that only as there is clear provision therefor can a deduction be allowed. New Colonial Ice Co. v. Helvering, 292 U. S. 435. In Helvering v. Inter-Mountain Life Insurance Co., 294 U. S. 686, the Supreme Court, with respect to statutory provisions allowing another type of deduction to life insurance companies, stated in part:
* * * It is intended to define a deduction which they are permitted to mate in the calculation of the net amount to be taxed. The rule that ambiguities in statutes imposing taxes are to be resolved in favor of taxpayers does not apply. Deductions are allowed only when plainly authorized. Ilfeld Co. v. Hernandez, 292 U. S. 62, 66. New Colonial Co. v. Helvering, 292 U. S. 435, 440.
The fact that the 3 percent is sometimes designated as “ interest ” in the ordinary life policy or is treated as interest by the petitioner does not determine the question of whether it is deductible interest under the Federal statutes, Baltimore & Ohio R. R. Co., 29 B. T. A. 368, 312, and Irving N. Klein, 31 B. T. A. 910; and it is sometimes designated as interest income in the same policy. That it is not exclusively designated as interest in the policy, but is also designated primarily as income there, is significant. Nor does the fact that it is guaranteed or assured determine that it is interest under such statutes any more than the fact that certain dividends are assured to a .certain extent on preferred corporate stocks renders such dividends interest and not earnings by way of dividends. Under Option D the 3 percent rate is merely a minimum rate of earnings and not interest; and in such preferred dividends the rate fixed is merely a maximum of earnings and not interest. The figure and words “ 3 percent ” are also used in the policy in describing the reserve basis upon which petitioner operates.
The word interest ” is used in petitioner’s type of ordinary life policy only once in its true sense. It is provided therein that interest at 6 percent shall be paid to the petitioner by any policyholder who borrows from petitioner against his policy and upon the security thereof. Hence, it appears from the language of this type of policy that the term “ interest ” as applied to proceeds of policies left with the company under Option D is not used in the same sense as it is used in describing interest upon money loaned by the petitioner upon the security of its policies.
*857The proceeds were not borrowed by the petitioner from the beneficiaries. Ordinarily money at interest is borrowed for the use of the borrower in his business or for his other purposes. This is not true in the instant proceeding. Under the provisions of the policy the proceeds were “ left with ” the petitioner, 'fhe petitioner, so far as the record shows, did not need or use these proceeds for its own purposes, but simply conserved them for the benefit of the beneficiary in accordance with the provisions of the policy. To constitute interest there must be definite terms with respect to designation of the person or persons to whom the principal and interest are to be paid, the time and place of payment, the amount of the principal, and the rate. A fair test of whether the terms are definite enough to constitute interest is whether the borrower may make payment of the principal and interest at some definite agreed time and place or make legal tender thereof, and thus stop the running of the interest. Here the evidence does not show that there were any such definite or certain terms in reference to any policy.
Under the statute of Pennsylvania whenever, under the terms of any policy of life insurance or under any written agreement supplemental thereto, the proceeds are retained by the company at maturity or otherwise, no person entitled to any part of such proceeds or any so-called interest due thereon is permitted to commute, anticipate, encumber, alienate, or assign the same or any part thereof if such permission is expressly withheld by the terms of the policy or supplemental agreement; and the company shall not be required to segregate such funds, but may hold them as a part of its general corporate funds.6 This supports the view that there was no indebtedness owing from the petitioner to the beneficiary within the meaning of the Federal revenue acts and that the 3 percent paid under Option D did not constitute deductible interest.
There is in reality, in the exercise of Option D, no new contract entered into between the petitioner and either the insured or the beneficiary. The Pennsylvania statute requires that each policy shall constitute the entire contract.7 In any event, election of this sort of payment is founded primarily upon the provisions of, and is made by virtue of, the original contract of insurance out of which any obligation or change thereof in this respect arises. Hence, it is immaterial whether there is a new or supplemental agreement. Even if we assume, for purposes of discussion, that there was a new contract between the insurer and the beneficiary in those instances where *858the beneficiary made the election, such assumption would not reach those instances in which the insured made the election; and in these latter instances each and every payment made to the beneficiary was the discharge of a policy obligation, without the payment of any interest. The record contains no basis for determining what portion of the 3 percent paid under Option D was paid pursuant to election made by the insured, in his lifetime, and what portion was paid pursuant to election made by the beneficiary.
The 3 percent paid under Option D is more in the nature of income or earnings of a trust fund than interest as upon money loaned. Whether the insured or the beneficiary made the election of Option D the proceeds were, in a sense, placed in trust with the petitioner and the 3 percent, as well as the additional 1.85 percent, represents earnings upon the principal amount. The funds were in the custody of a board of trustees, and they made the awards in excess of the guaranteed or assured 3 percent. It should be borne in mind that we are dealing with a participating ordinary life insurance policy issued by a mutual company primarily for protection. We are concerned with that protection as it relates to the beneficiary after the death of the insured. The policy contemplates conservation of assets of the nature of a trust fund. This has a double aspect. One is to preserve the assets, the other is to increase them by earnings. The insurer being on the 3 percent American Experience Table of Mortality reserve basis, it is contemplated that the annual increase will be at least 3 percent. Under the arrangements here the proceeds of the policies were left with the insurer, with the duty upon it to keep them intact so that at an appointed time they might be paid over to the beneficiaries, the insurer in the meantime paying over to the beneficiaries the annual increment.8
That the 3 percent paid by petitioner under Option I) in 1926 and 1928 is not deductible as “ interest ” under the applicable provisions of the revenue acts is sustained in principle by Edith M. Kinnear, 20 B. T. A. 118, wherein it is held that so-called “ interest ” such as we have presented here constitutes “ earnings ” and as such is included in gross income of the beneficiaries within the meaning of section 213 (b)(1), Revenue Act of 1926 (similar to section 22 (b) (1), Revenue Act of 1928), construed in the light of the statement accompanying the Conference Report to the House of Representatives submitted with the Revenue Bill of 1926, which, in effect, treats amounts left with life insurance companies in the *859maimer provided for in Option D as being “ placed in trust upon the death of the insured ”, and the holding of the majority as to the 3 percent under Option D is contrary, in principle, to that case.
In Edith M. Kinnear, supra, the insurance company paid a fixed •amount of 3 percent and approximately 1.85 percent in addition thereto, which is approximately the same as that paid by petitioner under Option D.
Sometimes instead of leaving the proceeds of policies with insurance companies, such proceeds are transferred to a trustee, thus creating what is known as a “ life insurance trust ”, the advantages being that usually a somewhat higher rate of income may be realized and that the trustee will have more latitude and assume broader discretionary powers.9 Where proceeds are left with a life insurance company, as they were under Option D, the situation is more nearly like that created by these “ life insurance trusts ” than it is like the situation of debtor and creditor. That earnings or increment of such life insurance trusts is interest is untenable.
It is true that the Revenue Act of 1928 makes provision for the deduction by life insurance companies, such as the petitioner, of interest. This does not contemplate the payments of 3 percent made under Option D. It comprehends only interest in its true sense; that is, amounts paid for the use of money actually borrowed. As heretofore stated, under Option D we are dealing with an insurance obligation and not a borrowing of money by .the petitioner. Even though the petitioner, under its charter, may not have the authority to borrow money, there is always the possibility that at some time it may have such authority and may borrow. Furthermore, judgments may be talien against the petitioner where policies are contested and interest may then have to be paid at a legal rate.
ISTo provision of the statutes and nothing in the statutory scheme of Federal taxation has been called to our attention which discloses an intention on the part of Congress to allow the deduction of any portion of the 3 percent paid under Option D. Compare Rockford, Life Insurance Co. v. Commissioner, 292 U. S. 382; Penn Mutual Life Insurance Co., infra; Commonwealth Life Insurance Co., 31 B. T. A. 887; and Illinois Life Insurance Co., 30 B. T. A. 1160, wherein it was held that life insurance companies may not deduct depreciation upon furniture and fixtures which are not used in connection with their investment business, the income from which is *860taxed, as distinguished from its underwriting business, the income from which is not taxed.
The question of whether the petitioner is here entitled to a deduction of the 3 percent paid under Option D is not affected by the fact that it is not entitled to a deduction of 4 percent of the mean of the reserve to cover proceeds of matured ordinary life policies left with, petitioner under Option D, as held in Penn Mutual Life Insurance Co., 32 B. T. A. 876 (Docket No. 59670). Upon the question involved in the payments of the 3 percent under Option D we are concerned only with whether there is express statutory authority for permitting the deduction of the 3 percent. The question of the deduction of reserves is governed by wholly different statutory language. Furthermore, if petitioner were entitled to the deduction of such payments of 3 percent upon the ground that it is not entitled to deduct 4 percent of the mean of such reserve, then the same reasoning would also require the allowance of the deduction of the 1.85 percent paid under Option D, which has been denied by the majority.
We are not here concerned with a question of policy. That is for Congress. We are concerned only with a question of statutory authority. Until Congress legislates to allow the deduction we are bound to deny it.
Upon the entire record, the conclusion that the petitioner has not sustained its burden of showing that the respondent erred in holding that the payments of the 3 percent made by it under Option D are not deductible for 1926 and 1927 is unavoidable. On the contrary, the evidence confirms the correctness o,f the determination of the respondent in this respect.
In the case of Duffy v. Mutual Benefit Life Insurance Co., 272 U. S. 613, relied upon by the majority, wherein it is stated that upon the maturity of a policy in a mutual company the policyholder becomes a creditor with an enforceable right and for the first time there is an indebtedness, the question presented was wholly different from any question presented here. The question there presented was whether the funds constituting the legal reserve of a life insurance company were invested capital within the meaning of section 207 (a) of the Revenue Act of 1917, which imposed a war excess profits tax. The Court held that the reserves did not constitute a present existing liability or indebtedness. The Court there used the word “ indebtedness ” in the broad general sense o.f “ obligation ”, rather than in any restricted technical sense. See City of Perry v. Johnson, 106 Okla. 32; 233 Pac. 679, 680; In re Board of Rapid-Transit Commissioners, 49 N. Y. S. 60, 69; and Wilcoxon v. City of Bluffton, 153 Ind. 267; 54 N. E. 110, 115.
See discussion of “ Dividends ” in Life Insurance, hy Joseph B. Maclean, 3d Ed., 1932, ch. 11, p. 226.
In Life Insurance, hy Joseph B. Maclean, 3d Ed., 1932, p. 173, it is stated: “At the present time the net rate earned by the companies varies from 4% to over 5 per cent, which is approximately the rate yielded by high class securities.” (Emphasis supplied.)
Section 614 of Title 40 of Purdon’s Pennsylvania Statutes, Annotated, Permanent Ed., 1930. (1921, May 17, P. L. 682, Art. XV, see. 429.)
Section 510 (f) of Title 40 of Purdon’s, Pennsylvania Statutes, Annotated, Permanent Ed., 1930 (1921, May 17, P. L. 682, Art. IV, sec. 410).
The Essence of Life Insurance, by William Breiby, 1924, p. 87, and Life Insurance, by Joseph B. Maclean, 3d Ed., 1932, pp. 49, 50.
Section 514 of Title 40 of Pardon’s Pennsylvania Statutes, Annotated, Permanent Ed., 1930 (1923, April 26, P. L. 104, see. 1).
Section 510 of Title 40, Purdon’s Pennsylvania Statutes, Annotated, Permanent Ed., 1930 (1921, May 17, P. L. 682, Art. IV, sec. 410).
To tile effect that proceeds of policies left with a life insurance company under options similar to Option D are held by the company “ as a trust fund ”, see The Essence of Life Insurance, by William Breiby, supra.
Life Insurance, by Joseph B. Maclean, 3d Ed., 1932, p. 172.