dissenting: The income in question, paid from an employees’ trust fund which was contributed wholly by an employer, is retirement pay, and is additional compensation for personal services actually rendered. A pension payment is a form of compensation for personal services, and it is not different from salary or wages, as a type of income. The issue involves taxation of a particular type of income, namely, earned income, or compensation for personal services. The question is, whether the pension payment for 1934 is taxable to petitioner, despite his prior assignment thereof, under the provisions of either or all of the following sections: section 22 *1154(a), defining gross income; section 25 (a) (5), defining earned income ; or section 165.
The majority opinion says, in effect, that the rule of Lucas v. Earl, 281 U. S. 111, does not apply to this case. However, it is submitted that the doctrine of the Earl case is that, because of the special quality of earned income, it must vest in the earner, for purposes of income tax, and the earner may not prevent the vesting of earnings in him by assignment thereof in anticipation of the payment of the earned compensation. It is believed that the Supreme Court has categorically stated the rule to be that Congress has the right to and intended to tax earned income to the earner, and that the earner may not escape taxation upon earned income. Such appears to be the meaning of the following statement in the Earl case:
There is no doubt that the statute could tax salaries to those who earned them and provide that the tax could not be escaped by anticipatory arrangements and contracts however skillfully devised to prevent the salary when paid from vesting even for a second in the man who earned it. [Italics supplied.]
The words “when paid” seem to make it clear that the time relation of the effort to prevent the vesting of earned income in the earner and the rendering of services for compensation is not material; i. e., it is immaterial whether, at the date of assignment of future compensation, the earner-assignor has or has not completed the rendering of his personal services. It is in the nature of compensation. for personal services, that the compensation is earned by the work of the individual, and is payable to the worker. He may not, by his agility, escape taxation on compensation by executing an assignment at any time. That appears to be the absolute rule. If it is not the rule, every worker can escape taxation on compensation for personal services by the adroitness of assigning compensation before it is paid, as soon as he completes his work. The Supreme Court appears to have placed, already, a bar to the above procedure, by stating that the earner of income can not prevent compensation from vesting in him “when paid.” The test is not whether earned income is “beneficially received.” The earner may elect to never receive the compensation, but when it is paid, it vests in him for the purposes of Federal income tax. If the foregoing is a correct statement of the meaning of the rule in the Earl case, it is applicable here, and petitioner is taxable on the pension paid in 1934 to his assignee.
Congress has clearly indicated that pension payments are to be taxed under the same rule as other earned income by enacting section 165, and that the amount of a pension payment is taxable to the earner when it is “made available” to him. Petitioner retired from the employ of the company in 1913. Thereafter, his name appeared on the company’s “Service Annuity Roll” and he was entitled to *1155receive pension annually for life. Presumably petitioner received, personally, pension payments from 1913 up to the date of the assignment in 1920 to the Knapp benevolent fund. Congress enacted for the first time the provision applying to employees’ pensions in the Revenue Act of 1921. Bee section 219 (f) of the Revenue Acts of 1921, 1924, and 192.6 and section 165 of the Revenue Acts of 1928, 1932, and 1934. Under these sections of the various acts petitioner was taxable on pension payments distributed or made available to him. After the , assignment in 1920, the pension payments were “made available” to petitioner when they became payable. Only the names of former employees could appear on the company’s “Service Annuity Roll.” The name of the Knapp benevolent fund could not appear on that roll as an employee, and it could receive payment of the pension under the assignment only through petitioner, because of his existence and his status as a former employee. When pension became payable it was “made available” to petitioner because of the services he had rendered and because he lived. The pension was none the less “available” to petitioner even though he elected to have it paid to his assignee. Section 165 is applicable. The 1934 payment is taxable to petitioner under that section and under the rule of Lucas v. Earl, supra, because the pension vested in petitioner when it was paid, despite his prior assignment thereof.
Congress has allowed deduction from gross income for gifts made to certain charitable uses under section 23 (o) (5). But the amount of the deduction is limited to 15 percent of the taxpayer’s net income as computed without the benefit of the subsection. Petitioner’s assignment' of his pension pay was a gift or contribution to the Knapp benevolent fund. The result reached by the majority opinion in this case would defeat and make meaningless the limitation imposed on the amount of the deduction under section 23 (o) (5) where the amount involved is more than 15 percent of net income. Also, Congress has allowed an exemption from income tax of 10 percent of earned income under section 25 (a) (4), providing an earned income credit. The limitation imposed on the amount of the credit would be defeated, under the majority view, where income of the type involved in this case amounted to more than 10 percent of total earned income.
The case of Julius E. Lilienfeld, 35 B. T. A. 391, is distinguishable from this case. The income assigned there was royalties, a type of income clearly different from compensation for personal services and not within the rule of the Earl case.
For the reasons stated, I respectfully dissent from the majority opinion.
SteRNHágeN and Opper agree with this dissent.