
    COMMISSIONER OF INTERNAL REVENUE, Petitioner, v. SHERWOOD SWAN AND COMPANY, Ltd., et al., Respondents.
    No. 19627.
    United States Court of Appeals Ninth Circuit.
    Nov. 8, 1965.
    Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson, Harry Baum, Edward L. Rogers, Attys., Dept, of Justice, Washington, D. C., for petitioner.
    James F. Crafts, Jr., Orrick, Dahlquist, Herrington & Sutcliffe, San Francisco, Cal., for respondent.
    Before HAMLEY, HAMLIN and DUNIWAY, Circuit Judges.
   HAMLEY and DUNIWAY,

Circuit Judges:

The decision of The Tax Court is affirmed for the reasons stated by that court in its opinion reported at 42 T.C. 299.

HAMLIN, Circuit Judge

(dissenting):

I respectfully dissent.

In 1945, by a ruling of the Commissioner of Internal Revenue, respondent gained a tax exempt status for an employees’ benefit trust fund. The trust provided for contributions by the employer to the fund under a fixed formula. Since 1947 no contributions were made to the fund because under the formula the employer’s annual earnings were not sufficient to require such contribution. In 1962 the Commissioner of Internal Revenue ruled that for the years 1959-1961 respondent no longer qualified under section 401(a) and 501(a) of the Internal Revenue Code- of 1954 as an exempt employees’ profit sharing trust. While in its inception the proposed plan was not discriminatory, it appears to me that because (1) since 1947 there have been no contributions to the plan, (2) under the formula provided in the plan it does not appear likely that there will ever

be any contributions to the plan, (3) in the operation of the plan it has not benefited the employees in general but, has instead benefited only a very small percentage of the employees, and (4) no new employees since 1947 have qualified under the terms of the trust, that the Commissioner of Internal Revenue did not abuse its discretion in holding that the respondent was no longer entitled to tax exempt status.

I would reverse.  