Before MARIS, GOODRICH and O'CONNELL, Circuit Judges.
O'CONNELL, Circuit Judge.
With four judges dissenting, the Tax Court has upheld the disallowance by the Commissioner of a $40,000 deduction claimed by petitioner in its 1941 tax return as "extra compensation." 1948, 10 T.C. 26. Petitioner here urges that the deduction was authorized by the "ordinary and necessary expenses" provision of section 23 of the Internal Revenue Code, 26 U.S.C.A. § 23(a).*fn1
Petitioner, on an accrual calendar-year tax basis, designs and manufactures equipment for filtration plants of municipalities and industries.*fn2 On December 31, 1941, all but a few shares of the common stock of petitioner were owned by the estate of the father of Charles V. Roberts, president of petitioner.
The nature of its business led petitioner to follow a policy of employing highlytrained personnel and keeping them at work during slack as well as busy periods. On December 31, 1941, consequently, petitioner was paying many of its employees substantially lower wages than employees of like ability in other nearby companies were receiving. With the tightening of the labor market, petitioner foresaw increasing difficulty in retaining its personnel unless it raised their wages or took other steps effective to induce the employees to remain. The former course was deemed inadvisable because of the problems likely to be encountered if it later became necessary to reduce wages. At a special meeting held on December 22, 1941, therefore, the board of directors authorized (1) a bonus to its officers and employees, not to exceed $39,000, and (2) the establishing of a $40,000 "profit-sharing trust."*fn3 The trust instrument was executed on December 31, 1941.
Reciting that the fund therein provided would promote loyalty and efficiency of the trained employees, the trust agreement included the following relevant provisions: (a) Petitioner deposited with the trustee, a bank, $15,000 in cash and a note for $25,000; (b) "all of the present employees" of petitioner, with specified exceptions,*fn4 who had or attained 5 years of continuous service with petitioner became "participants";*fn5 (c) the trust res and accretions thereto could be invested in notes or stock of petitioner and in corporate and individual obligations other than the "legal investments for Trustees" designated by the laws of Pennsylvania, with the further provision that the Board of Managers of the fund could not be held liable for the acquiring or retention of any stock of petitioner; (d) the Board of Managers, five in number, which could act by majority vote, was to consist of the president, the vice-president, an attorney (preferably the counsel of petitioner), an employee with at least ten years of service with petitioner, and a representative of the trustee or person with experience in investment; (e) "very considerable discretion" was vested in the Board of Managers, which was to direct the investments to be made, and which could grant, in amounts to be determined by it, (1) pensions to employees retired after reaching the age of 65, (2) severance or dismissal allowances, (3) disability benefit allowances, (4) grants in aid, (5) personal loans, (6) death benefit allowances, and (7) other benefits; (f) no part of the fund could be paid over to or used directly or indirectly for the benefit of the company; (g) the fund could become exhausted by disbursements made, but could be dissolved only by order of the Board of Anagers, ratified by two-thirds of the "participants," and with the consent of petitioner (unless petitioner was "subject to any legal tribunal by reason of insolvency"); if the trust was dissolved, the fund was to be distributed equitably among the "participants," as determined by the Board of Managers; (h) the trustee could be removed by the Board of Managers, if petitioner agreed and was not "incapacitated by bankruptcy or other declared insolvency"; (i) petitioner could, but was not obliged to, make additional contributions to the fund, and as an incident thereto enlarge the list of "participants" (provided further that the contribution was in an amount "ratably equitable" to assure substantially the same basis); (j) unless dissolved or terminated by virtue of the occurrence of one of the contingencies outlined in (g) above, the trust was to continue until the group of "participants" was reduced to twenty; and (k) petitioner, with the consent of the Board of Managers, could amend any of the foregoing terms except that forbidding the principal or income from enuring directly or indirectly to petitioner.
The final section of the agreement stated that its purpose was that the contributions "represent additional compensation" to the "participants"; that a pension trust as contemplated by section 23(p) of the Internal Revenue Code was not intended, but that petitioner did intend its contributions to be deductible expenses; and that petitioner obligated itself to make such amendments as were necessary to serve and accomplish the purposes of the agreement.
Approximately one year later, petitioner withdrew from the trustee the $25,000 note and, as authorized by the resolution of the board of directors, delivered in substitution therefor a new issue of 500 shares of 4% non-cumulative preferred stock of petitioner, par value $50. In determining the nature of the trust which petitioner established, we note that, for a period of three years from the date the trust was established, the fund made disbursements to three "participants": (1) two monthly payments of $60 each to a $1400-per-annum employee, as "disability pension"; (2) thirty monthly payments of $40 each to a $1,400-per-annum employee over 75 years old, as "pension"; and (3) twentyfive monthly payments of $20 each to a $2,400-per-annum employee over 67 years old, "retired." Thus, in the three-year period, disbursements to "participants" totalled $1,820, while the income alone from the note and preferred stock of petitioner was $3,000; and the only disbursements shown in the record as made to "participants" were in the nature of pensions.
At the outset, we can readily confine the scope of the issues before us in two respects: (1) petitioner concedes, and the analysis of the trust outlined above discloses, that the trust does not meet the requirements of section 23(p) of the Internal Revenue Code and that the deductibility of the contribution in question stands or falls on its being a business expense recognized by section 23(a) of the Internal Revenue Code; and (2) even if the contributions to the trust were such a business expense, only the $15,000 cash contribution could qualify as deductible, since the new issue of preferred stock had the legal effect of merely redistributing the ownership of petitioner rather than affecting its assets, liabilities, or net worth; consequently the stock payment could in no wise be considered an "expense." It remains for us to decide whether the $15,000 cash contribution was deductible under section 23(a) of the Internal Revenue Code.
The allowance of a tax deduction for contributions to trusts with features similar to that here in issue has been determined in a number of Tax Court and appellate decisions. Recently, the United States Court of Appeals for the Fourth Circuit, asserting that the case it had under consideration was so similar to Lincoln Electric Co. v. Commissioner, 6 Cir., 1947, 162 F.2d 379 and the case at bar that the decision should be the same in all three, specifically endorsed the reasoning of the Tax Court in the instant case and denied the deduction. Robertson v. Steele's Mills, 4 Cir., 1949, 172 F.2d 817. The comprehensive opinions filed in Robertson, Lincoln Electric, and the Tax Court in the case sub judice lead us to refrain from again elaborating, except by way of supplementary material, upon a field already so well-documented. All agree that the establishing of employees' beneficial trusts by employers is a praiseworthy step, but that a tax deduction for contributions to such beneficial trusts must nonetheless be based upon some provision of section 23 of the Internal Revenue Code. The difference of opinion thus far displayed among the judges who have been called upon to hear and review this field of litigation arises over the question whether a contribution to a trust which does not meet the requirements of section 23(p) of the Internal Revenue Code, in which category that at bar belongs, may be recognized as an ordinary and necessary expense under section 23(a).
The legislative history of section 23(p) seems to us not inapposite to such determination.As is outlined in Chapter 9, Volume 1 of Montgomery's Federal Taxes, Corporations and Partnerships, 1948-49, pages 515, 516, Congress had provided since 1921 that the income of employees' beneficial trusts was not taxable to the trusts, but that certain distributions from such trusts to employees were taxable to the employees. See, for example, section 219(f) of the Revenue Act of 1926, 26 U.S. C.A. Internal Revenue Acts 1924 to Date, page 176. Before the Revenue Act of 1928, the statute which redrafted and renumbered federal tax law into substantially its present form, there was, however, no specific provision governing the deductibility of contributions by employers to any such beneficial trusts.As prepared and passed by the House of Representatives, the Act still contained no such provision. The Senate, however, proposed and passed an amendment allowing as a deduction amounts transferred to a pension trust from a pension reserve fund accumulated under a pension plan previously in force.*fn6 From the conference committee thereafter appointed to resolve the differences between the House and Senate drafts emerged the provision which both legislative bodies approved. Section 23(q), Revenue Act of 1928, 26 U.S.C.A. Internal Revenue Acts 1924 to Date, pages 359-360.
The report made by the House conference managers, as to this amendment, seems to us highly significant: "On amendment No. 35: The Senate amendment provided that an employer who had established a pension reserve could transfer the reserve to a pension trust of the type exempt under section 165 of the bill, and would be permitted to deduct the amounts so transferred, the deduction to be prorated over a period of years equivalent to the time during which the reserve was accumulated. There are two other classes of cases which should be provided for: (1) The creation of a pension trust by an employer who has had a pension plan in existence, but who has been paying the pensions out of current income, for example, without the establishment of a pension reserve; and (2) the employer who creates a pension trust and adopts for the first time a pension plan. Upon the creation of a pension trust, the payments of the employer, in any of the above cases, consist of contributions covering the pension liability accruing during the year (which are allowed as a deduction under section 23(a) of the new law, assuming the reasonableness of the contribution) and payments made during the year, for example, on account of the pension liability which would have accrued during prior years had the plann been in existence, or to build up reserves in order to place the plan upon a basis which is actuarily [sic] sound. The House recedes with an amendment permitting the spread of the payments of the latter type above described over a period of 10 years." (Emphasis supplied.) 69 Cong. Rec. 10126, May 6, 1928. It would therefore appear that both branches of the legislature contemplated that, upon creation of a pension trust, section 23(a) could be utilized only to the extent that the trust received contributions (a) in reasonable amount and (b) defraying liabilities which accrued during the year under the terms of the pension plan.Cf. Clark Thread Co. v. Commissioner, 3 Cir., 1939, 100 F.2d 257, 258, cited in Robertson v. Steele's Mills, supra.
Moreover, in recommending the 1942 amendment of section 23(p) which provides that contributions of an employer under a stock bonus, pension, profit-sharing, or annuity plan "shall not be deductible under subsection (a) but shall be deductible, if deductible under subsection (a) without regard to this subsection, under this subsection but only to the following extent," 26 U.S.C.A. Internal Revenue Acts Beginning 1940, page 238, the House Ways and Means Committee reported as follows: "Thus, it is necessary [under the law as it has been, prior to the proposed amendment] to determine what contributions are deductible under section 23(a) in order to cover the pension liability accruing during the year, and then to determine how much is deductible under section 23(p). It has been decided that in the interest of clarification and administration of the tax laws no deductions should be allowable under section 23(a) for amounts paid into a pension trust, but all such deductions should be allowable only under section 23 (p)." H. Rep. No. 2333, 77th Cong. 2d Sess., p. 105 (1942-2 Int. Rev. Cum. Bull. page 451). That section 23(p) from its inception was intended to circumscribe the application of section 23(a) to employees' beneficial trusts, within limits which could not include a trust like that at bar, would seem irrefutable.
In the light of the consistent legislative approach toward deductions,*fn7 it would be incongruous, indeed, and would mean effectual deletion of section 23(p) from the revenue statutes between 1928 and 1942, to permit a taxpayer to gain a greater legal deduction by failing to comply with that ...