*1 Herrington quist, Sutcliffe, v. & Fran- San cisco, Cal., respondent. GARDNER, for Secretary Health, John W. of Welfare, Appellee. Education and HAMLEY, Before HAMLIN and No. 22193. Judges. DUNIWAY, Circuit Appeals United States Court of DUNIWAY, HAMLEY and Circuit Fifth Circuit. Judges: 10, Nov. 1965. The decision The Tax af- of Court is by firmed for the reasons stated that opinion reported
court in its at 42 T.C. 299. Shores, Birmingham, Jr., James L. Judge HAMLIN, (dissenting): Circuit Ala., Heflin, Tuscumbia, Ala., Howell T. respectfully I appellant. dissent. for by ruling 1945, In a of the Commis- Weaver, Atty., L. Macon U. L. S. Revenue, respondent Wayne sioner of Internal Collier, Atty., Bir- Asst. U. S. gained exempt mingham, a tax status for em- Ala., appellee. an for ployees’ benefit trust fund. The trust TUTTLE, Judge, Before Chief and provided by for contributions the em- Judges. GEWIN, RIVES and Circuit ployer to the fund under a formula. fixed PER CURIAM. Since 1947 no contributions were made Secretary to the fund because under formula The denied the claimant’s the earnings employer’s (appellant’s) application the annual not for establish- were require period disability sufficient to such contribution. ment of a for of and disability 216(i) In 1962 the Commissioner of Internal under benefits sections years Security (42 223 Revenue ruled for the 1959- and of Social Act that the longer respondent 416(i) 423). qualified 1961 no un- The U.S.C. and district 401(a) 501(a) der section and of the In- court held that the decision of the Secre- tary by supported ternal Revenue Code- of 1954 an ex- as was substantial evi- empt legal employees’ profit sharing proper dence trust. and that the standards Secretary employed by reach- were the in inception proposed While in the its ing his decision. A record review of the plan discriminatory, appears to was not it convinces us of the correctness of the (1) me that since there have because 1947 holding judg- of the district court. The plan, (2) been no the un- contributions to ment is therefore provided plan in it der the formula the likely appear does not will ever Affirmed. that there