(dissenting):
Although this case was stipulated, the claimants still bear the double burden— first in their capacity as plaintiffs in a refund suit, and second as taxpayers seeking to overturn a determination of the Internal Revenue Service — of proving that they are entitled to recover. See Boehm v. Commissioner of Internal Revenue, 326 U.S. 287, 293-294, 66 S.Ct. 120, 90 L.Ed. 78, 166 A.L.R. 708 (1945). Gaps in the stipulation should not be filled in their favor. Under this standard, they have failed to persuade me that they fall outside of Section 2039 of the Internal Revenue Code of 1954.
The only real issue is whether the payments to be made to Mr. Kramer under the second paragraph of the Memorandum of Agreement with the Company constituted “an annuity or other payment [which] was payable” to him or which he “possessed the right to receive” for his life. In Estate of Bahen v. United States, 305 F.2d 827, 834-835, 158 Ct.Cl. 141, 154 (1962), we held that this term “an annuity or other payment” does not include “the decedent-employee’s regular salary.” See also Estate of Fusz, 46 T.C. 214 (1966). Here the court interprets the $12,000 payable to Mr. Kramer “[i]n the event of illness and/or in the event that due to any circumstances which may make it impossible for [him] to continue to act as General Manager” as equivalent to the “regular salary” of which we spoke in Bah-en. On the other hand, I see these payments as “post-employment benefits” to *1372Mr. Kramer (Estate of Fusz, supra, 46 T.C. at 218), close kin to an ordinary retirement annuity or retirement payment.
The Memorandum of Agreement makes it absolutely plain that these payments were to be made after the decedent had stopped being general manager (for which he was also being paid $12,000 per year), and that he was nevertheless to “remain” with the company for “the remainder of his life.” His illness was expressly contemplated, as were “any circumstances which may make it impossible for Mr. Kramer to continue to act as General Manager.” In other words, he could be totally disabled for active participation in the business but would still continue to receive $12,000 each year for the rest of his life.1
True he was to be “an Advisor and Counsellor” and was “to assist the officers and Employees in formulating plans and programs for the continuation of the business.” Also, he was to receive his $12,000 “during such services being rendered.” But for me the significant aspect of the agreement is that nothing whatever was specified as to how much advice and counsel he was to give each year — or how often. Unlike the retiree in In re Estate of Wadewitz, 339 F.2d 980, 982 n.2 (C.A. 7, 1964), our decedent did not even promise to “keep himself at all times reasonably available for consultation by the officers and directors of the company.” If this were somehow to be implied, there is no indication that the company was expected to call upon him for any substantial amount of advice. Perhaps a day or two a year of pro forma consultation would be all; since this was a small family corporation, my guess is that, especially if the paterfamilias fell ill, no one anticipated more than a minimal exchange, just enough to say that “services” were “being rendered” during the year.
In essence, the agreement, as phrased, was clearly open to being used as a device for paying Mr. Kramer $12,000 so long as he lived even though, because of the state of his health or his age, he could do very little for the firm. This was in fact a “post-employment benefit”, not a “regular salary” such as was paid him as general manager. I repeat that we should read the lacunae in the contract and the stipulation against the taxpayers, not against the Government as the court prefers.
What the court does in this case is contrary to what was actually held in In re Estate of Wadewitz, supra, though the precise issue appears not to have been raised in that case and there is therefore no direct conflict. But I find it significant that in that instance all assumed that the payments were not “regular salary” within the meaning of Bahen. If the rule laid down for Mr. Kramer were generalized, it would afford an easy device by which businesses could actually pension off their officers while protecting the latter’s estates by exacting amorphous undertakings from them to give “advice” when called upon. The court’s stress on the stipulated nature of the present case, and the adverse inferences it draws from the Government’s willingness to stipulate, gives me hope that we are not declaring any such general proposition.2
LARAMORE, J., joins in the foregoing dissenting opinion.
. The Agreement gives no hint of the other “circumstances” which might make it “impossible for Mr. Kramer to continue to act as General Manager” (emphasis added), and the stipulation gives us no light. It is fair to assume that these other “circumstances”, making it “impossible” for liim to continue as general manager, would be comparable to a disabling illness.
. In the view I take, I need not, and do not, consider the other questions on which the court passes.