The opinion
TaNNENWald, concurring: While I agree with the conclusion of the Court based upon the facts of this case, I am not so willing as the majority to consign Aileene Evans to precedential oblivion. I am not at all certain that the majority’s conclusion with regard to Evans is compelled by Bingler v. Johnson. Nor is it altogether clear that funds received as an educational stipend in circumstances like those in Evans necessarily constitute present income.
The focal point of Bingler v. Johnson was whether a literal compliance with the limitations of section 117 (b) precluded an inquiry as to the compensatory character of the payments. The Supreme Court held that such an inquiry was proper and went on to sustain respondent’s regulations regarding “compensation for past, present, or future employment services” on the factual situation presented. In so doing, it described the thrust of respondent’s regulations as requiring a determination “that bargained-for payments [were] given only as a ‘quo’ in return for the quid of services rendered.” See 394 U.S. 741 at 757-758 .
In its opinion, the Supreme Court emphasized several factual elements which either were not, or were less directly, present in Evans:
(1) The preexisting employer-employee relationship, which was present both in fact and through the requirement of participation in a first phase .work-study program as a necessary condition of the stipend. In this connection, the Supreme Court also noted that the employee, during the period of study, retained his seniority status and received employee benefits such as insurance and stock option privileges.
(2) The relationship of the amount of the stipend to the employee’s prior salary rather than to his need.
(3) The requirement that the topical nature of the study relate to the specific activities of the employer — a factor which was far more tenuous in Evans.
(4) The continuity of relationship to the employer during the period of study through the submission of periodic work reports.
(5) The clear recognition, both in terms of the agreement and the substantive factual situation, that the employee should and would return to work for the particular grantor. In this connection, it should be noted that in Evans the taxpayer had no “obligation” to work for the Department of Mental Health of Tennessee; she could have worked for any one of a multitude of related institutions.
Additionally, I note that in Eva/ns the taxpayer had the option to repay the amounts involved in lieu of satisfying her “obligation” to render services — a circumstance that points m the direction of a loan in the year the “stipend” is received.
Many of these elements were emphasized in our opinion in Aileene Evans. See 34 T.C. 720, 726 . Clearly, they tend to counter the inexorability of a conclusion that, in such situations, the future services are bargained for in exchange for the payments and that a sole quid pro quo relationship exists. Indeed, it is likely that the foregoing-distinguishing elements caused the Supreme Court to accord less than clear treatment to our decision in Aileene Evans. See 394 U.S. 741, 756, fn. 30 .
I am reluctant to paint with too broad a brush when it is not clear that the statute requires such sweeping generalizations. The history of our legal system teaches us that statements made in the context of particular fact situations may be perfectly unobjectionable when made but nonetheless may be inappropriate when applied to factual situations with only slight variations. While I am fully aware of our responsibilities as a national court to provide guidance for taxpayers, I am not convinced that a failure categorically to reject Aileene Evans is a shirking of that responsibility. Quite to the contrary, I believe that situations may exist wherein educational stipends entitled to exclusion under section 117 might be improperly taxed because of too broad a reading of the maj ority’s opinion.
Whether the elements to which I have directed my attention would be enough to tip the scales in a taxpayer’s favor is something we need not now decide. It is enough to suggest that we decide the case before us and leave the question of the extent of the continued vitality of Ailene Evans to be determined in light of particular factual situations as they are presented to us. The Supreme Court itself recognized in Bingler v. Johnson that a single mold should not be applied in determining what constitutes a “scholarship” or a “fellowship.” See 394 U.S. 741, 753 .
DreNheN, Naum, Soott, and Hoyt, //., agree with this concurring opinion.