OPINION.
Rattm, Judge:
The Commissioner determined a deficiency in income tax in the amount of $213.90 for the calendar year 1954. An issue raised by an amendment to respondent's answer has been settled by agreement. The facts in relation to the original determination were fully stipulated.
Petitioners, husband and wife, residing in Dallas, Texas, filed a joint income tax return for 1954; the matter in controversy relates to the husband, who will hereinafter be referred to as petitioner.
Petitioner was an insurance broker. He was engaged in 1954 in the business of soliciting and writing life insurance and casualty insurance as a representative of six life insurance companies and under brokerage arrangements with two firms writing casualty insurance. Among the life insurance companies which petitioner represented were the Occidental Life Insurance Company of California (hereinafter referred to as Occidental) and the Califomia-Westem States Life Insurance Company (hereinafter referred to as Western States). His contracts with Occidental and Western States provided for the payment to him of first-year and renewal commissions on all policies of life insurance secured by him for the respective companies.
During 1954 petitioner took out or continued to carry policies of insurance on his own life with Occidental and Western States. As a result of his arrangements with those companies he was entitled to the same commissions with respect to these policies that he would have received had they been written upon the lives of third persons. The commissions on these policies for 1954 were in the aggregate amount of $455.11 ($335.70 for insurance with Occidental and $119.41 for insurance with Western States), and he obtained the benefit thereof either by remitting the net premium (after deducting his commissions) to the company or by remitting the gross premium and then receiving the commission from the company. The record does not clearly show which method was employed here, but we agree with both parties that the form of the transaction is of no consequence in this case. The question for decision is whether petitioner is properly chargeable with having received income in the amount of the so-called commissions of $455.11 in connection with the policies upon his own life.
If the amount involved were actually compensatory in nature, if it were like a "bargain purchase" where an employer intends to compensate an employee by selling property to the latter at less than fair market value (see Income Tax Regs., sec. 1.61-2(d) (2)), we would have no hesitancy in holding that the net reduction in the cost of petitioner's insurance represents taxable income to him. But petitioner was a broker; he was not an employee. In selling insurance to strangers he was free to sell policies of any of a number of companies; and in purchasing his own insurance from one of those companies he in no way was the recipient of compensation, as contended by the Government.
The situation is not materially different from that of a stockbroker who has a seat on a stock exchange and who buys or sells securities on his own account. Under stock exchange regulations a broker is required to charge specified commissions. Yet when he uses the exchange facilities to deal in his own stock his net cost in buying securities is lower than the cost to anyone else, and the difference is due to the so-called commission which is not applicable to transactions involving his own securities. Similarly, a real estate broker may be required to charge commissions at fixed rates pursuant to local regulations; yet when he acquires or disposes of property for his own account he obtains the economic advantage of a net price in which the effect of the commission that would otherwise be applicable is eliminated. Plainly, neither the stockbroker nor the real estate broker realizes taxable income within the meaning of the revenue laws in the foregoing examples.
Consider also the case of the salesman who takes orders for the sale of merchandise by the XYZ Brush Company to the ultimate consumer and is paid a "commission" on each sale. Can it fairly be said that he realizes income if he should buy one of the products for his own use at the net price which does not include the commission that would otherwise be reflected in the price of the merchandise? We think the answer must be in the negative.
Examples might be multiplied as to dealers in other types of products, which may even be subject to the so-called fair trade laws in many States, and thus could not be sold at retail below minimum fixed prices. It is therefore no answer to say here that the laws of Texas prohibit the sale of life insurance policies at less than normally scheduled rates of premium. Cf. Tex. Ins. Code art. 21.21 (Yernon).
The present difficulty in large measure grows out of the nature of the insurance business and semantics with respect to the word "commission." Of course, local law may fix the rate at which insurance is sold. But this does not mean that when a broker buys insurance on his own behalf at what is essentially the "wholesale" cost he is in receipt of compensation. The word "commission" while normally suggestive of compensation for services is a verbal trap when applied to the reduction in cost of a broker's own insurance. It is no more compensatory to him than the economic benefits enjoyed by any of the other persons noted in the examples referred to above. Although there may be factual differences between petitioner's situation and the ones relating to such other persons which may be of vital significance in other contexts, the important thing here is that each of them derives an economic benefit (as an incident to his status as a stockbroker etc.) that is not treated as income because it is not compensatory and petitioner should be treated similarly because his economic benefit is likewise not compensatory. Buies made for the regulation of insurance companies for the purpose of administering insurance laws are not necessarily to be applied in determining Federal income tax liability. Cf. Silverman v. McGinnes, 259 F. 2d 731 (C.A. 3). Of pivotal significance here is the fact that petitioner derived an economic benefit merely as an incident to his status as an insurance broker, similar to the economic benefits that might accrue to the persons described in the foregoing examples, and the reason that such benefits are not regarded as taxable income is that they are not compensatory in nature.
Respondent places much emphasis upon Treasury practice beginning with a ruling in 1915 (T.D. 2137, 17 T.D. 48), which was reaffirmed and explained in 1932. G.C.M. 10486, XI-1 C.B. 14. The latter ruling reads in part as follows:
Information is requested relative to the basis on which a ruling relating to insurance commissions was made.
The particular ruling, which is one of several rulings contained in Treasury Decision 2137, reads as follows:
"Commission retained, 6y agent on his own life insurance poliey. — A commission retained by a life insurance agent on his own life insurance poliey is held to be income accruing to the agent, and should be included in his return of income for the assessment of the income tax.
"If a life insurance company reduces the standard charge of an insurance policy to a purchaser and the relationship of employer and employee does not easist, the amount hy which the policy is reduced can not he considered income [Italic supplied.] at the time of purchase for the reason that it is not 'gain derived from capital, from labor, or from both combined,' nor 'profit gained through a sale or conversion of capital assets' within the meaning of the definition of income as stated in Eisner v. Macomher
"The reason that the commission allowed an insurance agent on a policy taken out on his own life is considered income is that the relationship of employer and employee [Italic supplied.] exists between the insurance company and the agent, and inasmuch as the insurance company is under contract to pay the agent commissions on all policies of insurance secured by him, no distinction can logically be made between a commission paid to the agent on account of a policy written on his own life and a commission paid to the agent on account of a policy written on the life of some one else. The commission is paid to the agent as compensation for services rendered as an employee, i.e., on account of business obtained, regardless of whose life is insured, and is 'gain derived from labor,' and therefore taxable income. "
That ruling is specifically limited to cases where "the relationship of employer and employee exists between the insurance company and the agent." Indeed the ruling is explicit that a contrary result obtains where "the relationship of employer and employee does not exist."
That ruling remained in effect without change until 1955. Thus, in view of petitioner's status as a broker rather than as an employee, what we have here is a ruling of many years standing in which the reduction in cost of the broker's own insurance does not appear to have been regarded as income.
To be sure, a ruling was issued in 1955, after the tax year here involved, in the course of which it was stated without amplification that insurance salesmen who might be considered independent contractors are like other salesmen who might become entitled to a commission on their own policies, and that such commission constitutes income to the salesmen. Rev. Rul. 55-273, 1955-1 C.B. 221. That ruling manifestly cannot be squared with the theory of the earlier ruling as applied to brokers. The basic question involved is whether the so-called commission was compensatory. We need not pass upon whether the earlier ruling was correct as applied to an employee. The case before us involves a broker, not an employee, and we are satisfied on the record before us that the so-called commissions in controversy herein were not in fact nor were they intended to be compensatory in nature. A contrary result would discriminate against insurance brokers and in favor of all other types of brokers and other persons in comparable situations. The revenue laws should be interpreted in accordance with, the substance of the transaction, and the mere fact that there might be some peculiar or esoteric insurance vocabulary that may be applied to the situation should not be employed to create income under the tax laws where none was intended. Our recent decision in Kenneth W. Daehler, 31 T.C. 722, points the way to the correct disposition of the present controversy. We think a like result is called for here.
The decision in Ostheimer v. United States, 160 F. Supp. 669 (E.D. Pa.) on appeal (C.A. 3), involving commissions with respect to policies on the lives of the taxpayer's former partner, three key employees, and his children, proceeds upon the assumption that the result there reached was required by administrative practice beginning in 1916. However, that assumption is incorrect to the extent that it pertains to a broker. Without expressing any view as to whether a valid distinction exists between the two cases, we are satisfied that there has not been a realization of taxable income in the instant case.
Reviewed by the Court.
Decision will he entered wnder Bule 50.
Bhuoe, J., concurs in the result.
PiERCE, J., dissents.
The record shows that it was the practice of Western States to permit its agents to remit net premiums on first-year policies but to require the gross premiums to be transmitted to it in subsequent years. The record does not disclose the practice of Occidental, nor does it show whether the 1954 commissions here involved were first-year commissions or so-called "renewals" payable in respect of subsequent year premiums.