The opinion
Tannenwald, J, dissenting: The majority accepts as the starting point of its reasoning respondent’s concession that supplementary medical benefits paid under part B of title XVIII of the Social Security Act do not count in determining the total amount of “support” for purposes of section 152. See Rev. Rul. 70-341,1970- 2 C.B. 31 . Compare Rev. Rul. 64-223,1964- 2 C.B. 50 . They then argue that no distinction should be drawn between benefits paid under part A and part B. Ergo, the majority concludes that medical benefits paid under part A should similarly be excluded in determining the amount of total support.
In my opinion, we should not ride piggyback on respondent’s concession as to a situation not presently before us, namely, how part B or private medical insurance benefits for which specific payment is made should be treated. Compare Samples v. United States, 226 F. Supp. 115 (N.D. Ga. 1963), with Rev. Rul. 70-341, supra, and Rev. Rul. 64-223, supra. See also Mawhinney v. Commissioner, 355 F. 2d 462 (3d Cir. 1966), affg. per curiam 43 T.C. 443 (1965). Respondent’s rulings are clearly not binding upon us (see Stubbs, Overbeck & Associates v. United States, 445 F. 2d 1142, 1146-1147 (5th Cir. 1971)), and, whatever force they may have as a reflection of administrative interpretation of a statute available as an aid to construction (see Hanover Bank v. Commissioner, 369 U.S. 672, 686 (1962)), the latter principle should have no bearing herein, where respondent’s interpretation relied upon by the majority involves another issue and, indeed, respondent has in fact given the opposite construction with respect to the issue we are called upon to decide. See Rev. Rul. 70-341, supra.
In short, I believe we should address ourselves to the precise questions before us, namely, whether medical insurance benefits paid under part A are. includable in determining the amount of total support and by whom they should be deemed contributed, and resolve those questions within the frame of reference of judicial decisions in comparable situations and without regard to the position respondent has taken in other contexts.
In Helen M. Lutter, 61 T.C. 685 (1974), affd. per curiam 514 F. 2d 1095 (7th Cir. 1975), benefits received by a mother from the State as “Aid to Families with Dependent Children” and as medical assistance were held to constitute total support, but not furnished by the mother. 1 We have reached the same conclusion with respect to amounts spent by the Wisconsin State Department of Public Welfare for an invalid child (John L. Donner, Sr., 25 T.C. 1043 (1956)); the cost of support furnished by a State mental hospital; 2 welfare payments actually used for support (Eddie L. Carter, 55 T.C. 109 (1970)); cash grants from a county’s department of social services; 3 and hospital services furnished without charge to a claimed dependent. 4 Finally, we have consistently held that social security payments received as old age and disability insurance benefits and used by the recipient for support constitute self-support. 5
To my mind, medical benefits under part A are comparable to the benefits involved in the above-mentioned cases. Accordingly, I would hold that such benefits should be included in the amount of total support and that the amount of such benefits was contributed by the mother for her own support, with the result that petitioners did not furnish more than half of her support and are not entitled to claim her as a dependent for the purposes of sections 152 and 213.
Raum, Simpson, and Quealy, JJ., agree with this dissent. See also Hiram Johnson, T.C. Memo. 1974-150 .
H. B. House, T.C. Memo. 1959-47 .
John A. Frazier, T.C. Memo. 1973-21 .
RoyB. Abbott, a Memorandum Opinion of this Court dated Feb. 9,1954.
See Thomas J. Black, T.C. Memo. 1972-135 ; Glenn W. Kincheloe, T.C. Memo. 1971-35 ; Wilfred Abel, T.C. Memo. 1962-192 ; William H. Stang, T.C. Memo. 1960-55 .