The opinion
HINCKS, Circuit Judge
(dissenting).
In Helvering v. American Dental Co., 318 U.S. 322, 327 , 63 S.Ct. 577, 580 , 87 L.Ed. 785 , it was said: “The narrow line between taxable bonuses and tax free gifts is illuminated by Bogardus v. Commissioner, 302 U.S. 34 , 58 S.Ct. 61 , 82 L.Ed. 32 , on the one side and upon the other by Noel v. Parrott, 4 Cir., 15 F.2d 669 , as approved in Old Colony Trust Co. v. Commissioner, 279 U.S. 716, 730 , 49 S.Ct. 499 , 73 L.Ed. 918 .” In my analysis the case here is far closer to Bogardus than to Noel.
In Bogardus v. Commissioner, 302 U. S. 34 , 58 S.Ct. 61 , 82 L.Ed. 32 , it is true that the majority opinion points to the fact that the recipients of the bounty were never the employees of the disbursing company or its stockholders. But as I read the majority opinion this was at most a makeweight, not at all a decisive consideration. It was said, on page 41 of 302 U.S., on page 65 of 58 *730 S.Ct. that if the disbursements had been made by the employer, “or by stockholders of that company still interested in its success and in the maintenance of the good will and loyalty of its employees, there might he ground for the inference that they were payments of additional compensation.” (Emphasis supplied.) This is a far cry from a holding that the result would necessarily have been otherwise if the employer-employee relationship had existed at the very moment of the disbursement. And obviously the added weight of this feature was minuscule: the payment came from the stockholders who had enjoyed the economic benefit resulting from the employment — • from those who a day or two before had been the stockholders of the employer-corporation. Indeed, as Judge Hand observed in his opinion below, Bogardus v. Helvering, 2 Cir., 88 F.2d 646 , at page 648-649, the “intent and motive were precisely the same as though the shareholders had been the employers of the donees, which they were not.” The other grounds of distinction advanced by my brothers are even more tenuous. Indeed, in my estimate they tend to support the conclusion of a gift, rather than to militate against it.
In the Noel case, referred to in Hel-vering v. American Dental Co., supra, as illuminating the dividing line from the other side, there were factors, not present here, which cogently supported the conclusion of compensation. For in Noel, as Judge Parker points out, “it affirmatively appears that it [i e., the questioned payment] was made upon a consideration.” [ 15 F.2d 671 .] Moreover, in Noel it was reported by the corporate “donor” in its income tax return as a salary deduction.
And so, if the distinction between gift and compensation is a problem to be determined on an ad hoc basis — as is implicit in the Bogardus majority opinion —the instant case, in my judgment, should be classified as a gift: it is within the scope of the Bogardus decision.
However, in the Bogardus case Justice Brandéis in his dissenting opinion, made a somewhat different approach to the problem. He said [ 302 U.S. 34 , 58 S.Ct. 66 ]:
“ * * * What controls is the intention with which payment, however voluntary, has been made. Has it been made with the intention that services rendered in the past shall be requited more completely, though full acquittance has been given? If so, it bears a tax. Has it been made to show good will, esteem, or kindliness toward persons who happen to have served, but who are paid without thought to make requital for the service? If so, it is exempt.
“We think there was a question of fact whether payment to this petitioner was made with one intention or the other. A finding either in his favor or against him would have had a fair basis in the evidence. It was for the triers of the facts to seek among competing aims or motives the ones that dominated conduct. Perhaps, if such a function had been ours, we would have drawn the inference favoring a gift. That is not enough. If there was opportunity for opposing inferences, the judgment of the Board controls. Elmhurst Cemetery Co. of Joliet v. Commissioner, 300 U.S. 37 , 57 S.Ct. 324 , 81 L.Ed. 491 ; Helvering v. Tex-Penn Oil Co., 300 U.S. 481 , 57 S.Ct. 569 , 81 L.Ed. 755 .”
In the case now before us a search “among competing aims or motives [for] the ones that dominated conduct” will reveal evidence of the following facts. The employment relationship had been one that had brought Stanton into close personal contact 1 with the vestry and *731 wardens of the church and with the directors of the Operating Company several of whom testified that a general feeling of gratitude, rather than a desire to supplement Stanton’s salary, had prompted the payment. Stanton’s salary in the past had been in no way inadequate ; 2 and the amount given was in no way geared to salary or years served. A vestryman and director of the Operating Company testified: “Mr. Stanton was liked by all the vestry personally. He had a pleasing personality.” And the senior warden testified: “We understood that he was going into business for himself. We felt that he was entitled to that evidence of good will.” The employment relationship was at an end when the payment was made and the donor derived no benefit therefrom aside from the satisfaction flowing from its expression of gratitude.
If these facts be added to those recited in my brothers’ opinion the sum total, it seems to me, would adequately support a finding that “good will, esteem or kindliness,” the touchstone of Justice Bran-déis’ dissenting opinion in Bogardus, rather than more complete requital for past services, had dominated the Operating Company in making the payment. And such a finding is implicit in the more general finding below. In Bo-gardus, the majority of the court thought the determination of the trier had “no support in the primary and evi-dentiary facts.” That is not so here, as the evidence just referred to shows. The Bogardus minority found that “there was opportunity for opposing inferences,” exactly the situation here. That being so, I think we may not disturb the finding of the dominating motive on which the judgment below was based. Peters v. Smith, 3 Cir., 221 F.2d 721; Nickelsburg v. Commissioner, 2 Cir., 154 F.2d 70 .
Surely the finding below was not clearly erroneous within the purview of Federal Rules of Civil Procedure, Rule 52, 28 U.S.C.A. Findings by a trial judge, just as those by the Tax Court, 3 may not be disturbed unless clearly erroneous. Plaut v. Munford, 2 Cir., 188 F.2d 543 ; Smith v. Hoey, 2 Cir., 153 F.2d 846 ; Scott v. Self, 8 Cir., 208 F.2d 125 ; Smyth v. Barneson, 9 Cir., 181 F.2d 143 . In other areas of tax law, questions going to intent have generally been dealt with as questions of fact. See United States v. Wells, 283 U.S. 102 , 51 S.Ct. 446 , 75 L.Ed. 867 ; Wickwire v. Rein-ecke, 275 U.S. 101 , 48 S.Ct. 43 , 72 L.Ed. 184 ; Blakeslee v. Smith, 2 Cir., 110 F.2d 364 ; White v. Bingham, 1 Cir., 25 F.2d 837 ; Jahn v. Pedrick, 2 Cir., 229 F.2d 71 ; Keefe v. Cote, 1 Cir., 213 F.2d 651 . See also case note on Bogardus v. Hel-vering, 2 Cir., 88 F.2d 646 ; 51 Harv.L. Rev. 167. In Peters v. Smith, supra, it was held that a jury finding that a payment was a gift, when made on conflicting evidence, may not be set aside.
Thus I am brought to the conclusion that the holding of my brothers is in conflict with both of the Bogardus opinions and exceeds the power of an appellate court over findings by the trier of facts. Nor is the result reached required by the earlier cases in this circuit. Both Carragan v. Commissioner, 2 Cir., 197 F.2d 246 , and Nickelsburg v. Commissioner, supra, are distinguishable on their facts. Moreover, in both, this court refused to disturb the finding of the trier.
I would affirm.
. Obviously, payments to an individual employee whose work has brought Mm into close personal touch with his employer may more readily be found to emanate from motives of “good will, esteem, or kindliness” than payments to groups of employees who had had no personal contact with the employer. It is this personal feature of the relationship which goes far to explain the cases re- *731 ferrecl to by my brothers which held that payments to ministers constituted gifts.
. It was almost twice that later provided for his successor.
. 26 U.S.C.A. § 7482 (a) provides
“(a) Jurisdiction. — The United States Courts of Appeals shall have exclusive jurisdiction to review the decisions of the Tax Court, except as provided in section 1254 of Title 28 of the United States Code, in the same manner and to the same extent as decisions of the district courts in civil actions tried without a jury; * *