(dissenting).
“Yes, Virginia, there is a Santa Claus,” wrote Francis Pharcellus Church in his famous editorial published in the New York Sun on September 21, 1897. The impulse to give generously to those less favored by fate or circumstance flourished for centuries as the Christmas Spirit moved the hearts of men. And nothing could be more natural or more human than the giving of gifts to those with whom there exists a bond of relationship, members of the family, employees or others who have helped to make the course of life run more smoothly, such as elevator boys, grocery clerks, laundresses, and a host of others. Perhaps some occasional cynic made his gift thinking only of what he might receive in return in the way of special favors. But the generality of mankind rejoiced in the thought that there truly was a Santa Claus and that he could do his bit just because it was Christmas time. Nor did it in the slightest degree detract from the essential nature of the gift that it expressed appreciation for acts of courtesy or affection or service by those in the little circle of the donor’s life to whom the gifts were made.
Consistently with this almost universally recognized manifestation of good will, and uninterruptedly over the years, the individual sums paid over to the employees of private clubs from Christmas contributions by members were very property not considered by the Internal Revenue Service to be wages and income, taxable under the Income Tax Law. No withholding for income tax purposes was required; and these gifts were not included in the wages upon the basis of which Social Security payments were made. Indeed, this state of affairs was recognized and formalized in I.T. 3726.1
Suddenly came the change of policy reflected in the case before us. The-effect is to create a new source of revenue, likely to run into many millions of dollars annually, all of which is taken from that class of taxpayers at the bottom of the tax ladder and least able to-pay additional taxes. I raise one small voice by way of protest.
Perhaps it is already too late, for the-tax gatherers have moved in swiftly. Even while this very test case was sub judiee, and on December 12, 1963, I.T. 3726 was in effect repudiated, and the-*852following release, T'IR-527 was issued by the Service:
“The U. S. Internal Revenue Service today announced that amounts distributed by social clubs and similar membership organizations to their employees in recognition of services are includible in the gross income of the recipients. Many such organizations make up funds from voluntary contributions or assessments against the members of the clubs which funds are distributed to employees of the club.
“The amounts distributed by the clubs to their employees constitute wages subject to withholding for income tax purposes.
“Internal Revenue stated that I.T. 3726, C.B. 1945, 63, is distinguished from the circumstances described above. I.T. 3726 discusses the relatively narrow circumstances in which it can be established that Christmas distributions are gifts and not paid in recognition of any services.” 7 CCH 1964 Stand.Fed. Tax Rep. ¶6327.
The effect no doubt has been that the clubs have capitulated and there has already been widespread withholding, with what effect upon the thousands of club employees can readily be imagined. It was scarcely to be expected that- club managements would do otherwise, when faced with the probability of tax claims running back as far as the applicable Statute of Limitations would permit, with the usual interest and penalties. The whole sorry business is shocking to me.
Nor is the fundamental character of these gifts affected by the inept wording of the resolution and the notices in this particular case. In all these private clubs tipping is not allowed, and the Christmas Funds are always distributed with an eye to the annual compensation and the years of service of the various club employees. It would be strange indeed if such gifts were made without any thought of appreciation for good work in the past. If this test case stands unreversed, it may be taken as established that distributions of Christmas Funds to club employees will be taxable as wages and income, no matter how the club resolutions and the notices to members are worded. Otherwise the taxability of such items would depend upon the ingenuity of tax counsel rather than upon the basic facts.
Just because no tipping is allowed, and the Christmas Fund provides club members with the only legitimate opportunity to give something to the club employees, it does not follow that these gifts are tips. Indeed, to my way of thinking they are the very antithesis of tips. Many of the employees, such as the man who mixes the salads and others working in the kitchen, the clerical force in the bookkeeping department and maintenance, never have any direct contact with the members of the club. It would never occur to a member to give tips to any of these people. The donors have no knowledge of how the money is distributed to the various individual employees; and not one of the employees has any knowledge of who the donors are or the amount of their respective Christmas gifts. Nor does the occasional use of the word “bonus” put this case in the category of year-end payments to executives of corporations by way of bonuses or additional salary. The two situations are as far apart as the poles.
As long as these cases are to be disposed of on the basis of stipulations, without any testimony of live witnesses, we are the fact-finders on review, as pointed out in the majority opinion. The controlling law is stated in Commissioner v. Duberstein, 1960, 363 U.S. 289, 80 S.Ct. 1198, 4 L.Ed.2d 1218. We are to make findings by applying our “experience with the mainsprings of human conduct to the totality of the facts” of the case. Following this rule I do not see how we can arrive at any other conclusion than to find the contributions to the Christmas Fund were gifts, and the distributions to the individual employees were not wages or income.
*853What disturbs me most is the assumption, lying at the base of this case, that there really is no such thing as a gift bestowed out of the goodness of one’s heart and in the spirit of Christmas, but only payments of wages earned or to be earned and hypocritically called Christmas contributions. I have too much faith in my fellow man to believe that any such assumption is true.
I would reverse the decision of the Tax Court and hold the payments not to be taxable.
. “Amounts distributed to employees of the M Club, a nonprofit organization, out of a Christmas Fund made up of contributions of its members for such employees and not based on services performed, constitute gifts which are not includible in the gross income of the employees nor subject to withholding under Section 1622 of the Internal Revenue Code.
“Advice is requested whether amounts distributed at Christmas time to employees of the M Club, a nonprofit membership organization, are considered income and whether such amounts are subject to withholding under Section 1622 of the Internal Revenue Code.
“The M Club requests its members each year to make voluntary contributions to a Christmas Fund for distribution to its employees. The total amount subscribed or paid into the fund by its members is distributed to employees of the organization at Christmas time. The contributions are not based on any services performed by the employees sharing in the benefits of the fund and the amount paid by each member is purely within the member’s discretion. The organization does not treat the contributions as its own but keeps the fund earmarked ‘for-distribution to employees.’ The organization merely acts as agent for the members in the disbursement of the funds to-employees.
“It is held that amounts distributed to-employees, under the circumstances-stated, constitute gifts and are not in-cludible in the gross income of the employees nor subject to withholding under Section 1622 of the Internal Revenue-Code.”