Dissenting Opinion
Shoyer, J.A majority of my colleagues have found that Myer Feinstein, decedent, 69 years old but not retired, lacked a “substantial present economic benefit” in his company’s pension fund, and consequently occupied a reduced status equivalent to that of the retired pensioner in Huston Estate, 423 Pa. 620.
The flaws in their reasoning are clearly demonstrable. This pension plan guaranteed decedent no less than five optional benefits, any four of which he might “possess” and “enjoy” in his lifetime. Thus, in the event of his temporary or permanent disability, or his retirement, he would receive 100 percent of the amount previously allocated by the employer to his individual account. Temporary disability payments would be payable in monthly installments, but permanent disability and retirement benefits could be accelerated by the committee or “paid forthwith in a lump sum” by mutual agreement between the member and the committee: Art. 7.3.3. Any balance of *214installments remaining in the member’s account at death would be paid to a named beneficiary. Here, the full amount (which we may call the fifth option) was payable because decedent was fully employed and drawing salary up to the time of his death.
After five years employment, plus one to 10 years membership in the retirement fund, a member of this plan could resign and withdraw from 35 percent to 80 percent of the amount in his member’s account. Any balance remaining after such resignation would be forfeited to the fund for the benefit of other members.
All of the above options were open and available to Feinstein at the time of his death. His failure to select any of the first four did not deprive him of his right of election; it merely left decedent’s beneficiary entitled to benefits under the fifth option, which Feinstein well understood would become effective automatically upon his failure while living to have changed to one of the other four benefits.
No court has the power to eliminate any of the various options to “possess” and “enjoy” his member’s account in this pension plan, which were available to this decedent up to the moment of his death. No court has the right to make his election for him, in the absence of a prior adjudication of his incompetency. My colleagues, ignoring the fact that Huston had made his selection, have clearly exceeded the bounds of their judicial authority as to Feinstein.
Contrast these enumerated facts with the restricted situation in Huston where decedent had exercised his right to retire and was receiving monthly benefits, all of which, if and as received and unexpended, would become part of his taxable estate. Significantly, he had no right to anticipate or accelerate these installments, unlike the right of Feinstein to obtain his full member’s account in a lump sum forthwith upon mutual agreement with the committee. In *215Dorsey Estate, 366 Pa. 557, our Supreme Court indicated that such required assent by the employer to the mode of payment did not detract from decedent’s rights in the fund, “but governed only the form in which he or his designated beneficiary or his estate would receive it”: page 561. Huston, having elected to retire, and having no present economic interest or benefit in the unpaid installments which would go to his named beneficiary, and not his estate, presented a tax picture which was understandably within the exemption of section 316.1
If we inject the personal equation into the unadorned black and white contract picture as my colleagues have done, we must perforce make the following observations. Mr. Feinstein was president of the company and had been since December 16, 1952, when the plan was adopted, or earlier. He had also served as one of the three trustees of the pension fund. If he wished to continue as an employe beyond the normal “retirement date” of age 65, he could do so with the approval of the employer’s board of directors.2 As president of the company, his mere request to continue as an employe may well have been tantamount to the requisite approval, so that assent by the board of directors would have been purely perfunctory. Comparing the high executive office held by decedent with his advanced age, one must inevitably conclude that his official status so completely overshadowed his age, as to reduce the latter to utter insignificance.
*216The learned hearing judge allowed the taxpayer’s appeal on the theory that a delay of 23 days in obtaining the pension funds on retirement deprived decedent of possession and enjoyment. His reasons were alluded to in the majority opinion. I can see no merit in granting an exemption because of such slight delay. Even savings fund societies can enforce a delay of 60 days if they so choose (7 PS §503 (b)), yet a decedent’s moneys held in his name in a savings fund are unquestionably subject to inheritance tax: Housekeeper’s Estate, 10 D. & C. 494, 498. Under the instant plan, the delay could be reduced to a mere 24 hours or less, if decedent appropriately timed his application for retirement. Actually, it would be a rare case when retirement was requested without a longer planning period by the employe of more than six months. The theory of the hearing judge I find entirely too tenuous on which to base an exemption from inheritance tax. Especially is this true when we observe the statutory admonition that provisions exempting persons and property from taxation shall be strictly construed: 46 PS §558(5).
To me, when we examine the factual situation of Huston, Burke and Enbody, the distinction is clear. Once the employe has actually retired and named a beneficiary, as he had in those cases, the mere right of selecting a substitute beneficiary is not the privilege to “possess” or “enjoy”, or to exercise a proprietary right in the unpaid installments. And that was the single issue involved in each of those cases. Whatever rights and privileges the deceased taxpayer may have had prior to retirement, those earlier proprietary rights had all been extinguished by decedent’s voluntary selection of retirement benefits payable in installments. When death occurred, the status of each retired pensioner was fixed and immutable; his claim to the unpaid installments then became vested *217in a third-party beneficiary just as in any policy of insurance covering the life of decedent. Recognition by our Supreme Court of this similarity is implicit in Huston, where it is said, page 623:
“In this case decedent had no such rights [to enjoy, assign or anticipate benefits] in the unused portion of the fund, and the exemption of §316 applies. The only interest decedent had during her lifetime in the unused balance of her fund was the right to designate a beneficiary. Such a right is not regarded as a taxable event under these circumstances”.3
With decedent’s employe status intact at time of death, he did have unexercised proprietary rights in the pension fund which are subject to tax within the meaning and intent of section 316. His ownership of his member’s account was just as absolute as his ownership of any stocks, bonds or cash held in his name at death. The right to possess and enjoy were unmistakably his, and his alone. Transfer of these rights to a named beneficiary occurred at death, was testamentary in nature and, therefore, taxable.
Hence, I dissent.
Judge Burke joins in this dissent.
Under the instant Penn Federal plan, a retired member receiving monthly installments may, nevertheless, agree with the committee for payment of the balance in a lump sum or the purchase of an annuity for life: Article 7.4. Feinstein’s rights even after retirement would, therefore, be more extensive than those of the pensioner in Huston, in Enbody and Burke Estates, 85 D. & C. 49, 3 Fiduc. Rep. 344.
By article 7.2, retirement could come as early as age 55.
Section 316 does not go the whole way in exempting pension funds as does section 303 with regard to life insurance. In Huston Estate, our Supreme Court has astutely discerned the limit to which the legislature was willing to go. Perhaps some day the legislature will go all the way and exempt pension funds completely from inheritance tax. It has not yet done so.