of the pension was to gain a financial advantage for itself and, as has been seen, the motivating intent in making the tax payment was to carry out the plan without disturbing Peter's status quo.
In the third interrogatory the Court submitted to the jury the question 'What was the fair market value of the annuity contract?', and the jury answered '$ 14,500'. In view of the provision of Section 22(b)(2)(B) of the Internal Revenue Code, 26 U.S.C. § 22(b)(2)(B), that 'the amount contributed by the employer for such annuity contract * * * shall be included in the income of the employee * * *', the submission of this question to the jury was erroneous. There was no dispute that the amount contributed by the employer was $ 19,370.49 and the finding of the jury is, therefore, set aside. The amount to be included in the plaintiff's taxable income is the cost of the annuity.
There is no evidence to support the plaintiff's contention that the procedure adopted in connection with his pension was in any way part of a qualified pension plan as provided for by Section 165 of the Internal Revenue Code, 26 U.S.C. § 165. The testimony shows that there was no uniform pension plan and no intention on the part of the Company to adopt a 'qualified' plan, and no employee was assured of a pension on retirement, that not only the age of retirement but whether an employee would be retired at any age depended upon entirely different considerations in the cases of various employees and that payments to be made to each employee were worked out without relation to payments made to others.
The plaintiff's motion for judgment is denied.
The defendant's motion to set aside the verdict and for judgment is granted.
The intervenor's claim will be allowed.
An appropriate form of judgment may be submitted.
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