The opinion
LAY, Circuit Judge
(concurring):
Under the testimony presented here, a jury or other fact-finder could well find that the payments were made, in the words of the district court, “to allow [the residents] to pursue studies and advance their training.” 1
*864 Whether one uses the “compensation” test or the “primary benefit” test should make no difference. As the Supreme Court stated in Bingler v. Johnson, 394 U.S. 741 , 758 n. 32, 89 S.Ct. 1439, 1449 , 22 L.Ed.2d 695 (1969) citing the government’s brief: “‘[T]he general idea is the same: “scholarship” or “fellowship” does not include arrangements where the recipient receives money and in return provides a quid pro quo’ ” (My emphasis.) The fundamental issue is whether the “stipend” received by the residents is “in return” for the services or whether the services are merely incidentally furnished to the grantor and the money is paid to allow the students to pursue their studies and advance their training and research. Although the facts in this case are disputed on this issue, there is substantial evidence to support the jury’s finding in favor of the taxpayer. 2 Since this is a jury verdiet we cannot set aside the result even if we feel it is “clearly erroneous.” 3
The dissenting opinion expresses concern over disparity of tax treatment between taxpayers similarly situated. Such apprehension has been sounded before (See Commissioner v. Duberstein, 363 U.S. 278, 290 , 80 S.Ct. 1190 , 4 L.Ed.2d 1218 (1960); cf. Bingler v. Johnson, 394 U.S. at 753 , 89 S.Ct. 1439 , 22 L.Ed.2d 695 ), but apprehension alone cannot somehow serve to transform a basic question of fact into one of law. See generally Commissioner v. Duberstein, supra; Commissioner v. Heininger, 320 U.S. 467, 475 , 64 S.Ct. 249 , 88 L.Ed. 171 (1943).
. A significant distinction can be made between this case and the Fourth Circuit’s case of Hembree v. United States, 464 F.2d 1262, 1264 (1972). There the dis *864 trict court utilized the wrong standard by considering the primary purpose of the institution rather than the primary purpose of the payment.
. The evidence adduced demonstrates that the declared purpose of the University of Arkansas Medical Center (UAMC) is to provide educational programs to train physicians, nurses, pharmacists and specialists. The “Stipend Appointments” received by Dr. Blankenship and Dr. Leathers did not expressly require the rendition of any services. These stipends were made for the support of the doctors and their families, and any yearly increments were based upon increased family responsibilities, not increased or improved services rendered. The UAMC officials testified that the payments were not considered to be compensation for services, and the patients cared for by the medical staff could have been adequately cared for by the faculty without the help of the interns and residents, except possibly in the obstetrics division. (This is not in my opinion a critical factor for as Judge Bright points out the services were in fact performed by the residents allowing the faculty to devote their time to other endeavors.) Both doctors were under the supervision and close scrutiny of a faculty member, and their decisions and reports were subject to prior approval. Dr. Leathers testified that approximately two-thirds of his time was spent in personal study. uíáMC did not charge for any patient care performed by the residents. Although Dr. Leathers and Dr. Blankenship participated, to a small extent, in the teaching program, neither were contractually obligated to do so. The doctors were not required to continue their residency or remain with the hospital or within the state upon completion of their training. It is obvious that the jury inferred from this evidence that the monies paid were not in return for the services rendered. Such is a fair inference.
. A jury verdict is subject to a more restricted review on appeal than a single judge’s finding of fact. A trial judge’s finding of fact may be set aside if it is “clearly erroneous.” Fed.R.Civ.P. 52(a). Cf. Commissioner v. Duberstein, 363 U.S. 278, 290-291 , 80 S.Ct. 1190 , 4 L.Ed.2d 1218 (1960). This means that although there exists substantial evidence to support the finding, if the court of appeals possesses a firm conviction that a mistake has been committed, it may still reverse. See e. g., Oil Screw Noah’s Ark v. Bentley & Felton Corp., 322 F.2d 3 , 5-6 (5 Cir. 1963) ; cf. United States v. Gypsum Co., 333 U.S. 364, 395 , 68 S.Ct. 525 , 92 L.Ed. 746 (1948). On the other hand, a jury verdict may not be set aside where substantial evidence exists notwithstanding the court of appeals disagreement with it.