The opinion
Tannenwald, /., concurring: I agree with the result reached 'by the majority simply because, as Judge Hall puts it, the facts herein show that the “decedent strayed materially from the plan’s payment provisions” and hence section 2039(c) should not apply. I see no need in this case to engage, as both the majority and Judge Hall’s opinions do, in an expansive analysis of what might be the situation in other circumstances or the applicability or nonapplicability to section 2039(c) of the principle of constructive receipt which infuses the treatment of qualified employee annuities for income tax purposes. The reach of that principle in the field of taxation is murky at best. A similar description can be ascribed to the language of the opinions in Northern Trust, Albright, and Brooks. In this latter connection, it is enough, for the purposes of this case, to note that those cases are all distinguishable on their facts. While I am not rigidly averse to “biting the bullet,” I see no need to do it where, as is the situation herein, the facts do not demand such a course of action and to do so may cause us to foreordain, or at least foreshadow, the results of future cases.
Ratjm, J., agrees with this concurring opinion.