(concurring).
I state a separate view of the error in the Tax Court’s disposition of payments in the amount of $2700 made by the taxpayer under the second paragraph of his agreement with his estranged wife.
The opinion of this court adopts the rationale of Baker v. Commissioner, 2 Cir., 1953, 205 F.2d 369, rejecting a not unreasonable interpretation of Section 22 (k) of the Internal Revenue Code which the Tax Court has followed for several years. Steinel v. Commissioner, 1948, 10 T.C. 409; Estate of Orsatti v. Commissioner, 1949, 12 T.C. 188; Casey v. Commissioner, 1949, 12 T.C. 224; Fleming v. Commissioner, 1950, 14 T.C. 1308. And see Herbert v. Riddell, D.C. Cal. 1952, 103 F.Supp. 369, 387. I am not sure that I would follow the Baker case. But I am sure that the Tax Court reached an incorrect result in the present case for a reason which has nothing to do with the new doctrine of the Baker case.
Any rational reading of the first three paragraphs of the agreement in this case must reveal that, while the first paragraph is the lump sum property settlement type of provision, the second and third paragraphs are intimately related in such way that they together provide continuing regular monthly payments of money for current maintenance and support, albeit in decreased amount after five years, to the wife for life. It is not disputed that payments of this latter type are “periodic payments” within the meaning of Section 22 (k).
The Tax Court avoids this conclusion by refusing to read the second and third paragraphs together, but rather viewing the second paragraph as an isolated undertaking to pay a sum certain within five years. I think this refusal to read and interpret consecutive provisions in, relation to each other results in an unreasonable disregard of the clear meaning of the document. I would require that the two paragraphs be read together, thus necessitating a construction contrary to that of the Tax Court, but without reaching the problem of the Baker case.
On all other points I agree without reservation with Judge GOODRICH’S analysis.