
    Luther Ira WEBSTER and Edna H. Webster, Plaintiffs, v. UNITED STATES of America, Defendant.
    Civ. No. 11208.
    United States District Court W. D. New York.
    Dec. 30, 1965.
    
      Lamb, Webster, Walz, Telesca & Donovan, Rochester, N. Y., for plaintiffs.
    John T. Curtin, U. S. Atty., for defendant; Richard M. Roberts, Acting Asst. Atty. Gen., David A. Wilson, Jr., Burton G. Lipsky, Attys., Dept, of Justice, of counsel.
   BURKE, Chief Judge.

Plaintiffs sue for refund, with interest, of income taxes paid for the years 1961, 1962, and 1963.

By notice of motion filed August 23, 1965 the defendant moved for summary judgment. The plaintiffs filed a cross-motion dated August 24, 1965 for summary judgment for the relief demanded in the complaint. The parties on July 23, 1965 filed a written stipulation of facts. No issue of fact remains for determination.

The motions present the question whether amounts paid for premiums on insurance policies which provide solely for indemnity for loss of earnings, life, limb and sight are deductible as medical expenses under Section 213 of the Internal Revenue Code of 1954 (26 U.S.C. 1958 Ed. Sec. 213).

Defendant’s motion for summary judgment is denied.

The plaintiffs as a matter of law are entitled to summary judgment for the relief demanded in the complaint. I agree with the interpretation of the statute and with the reasoning upon which it is based in Heard v. Commissioner of Internal Revenue, 269 F.2d 911 (3 Cir. 1959).

Submit judgment on 10 days’ notice.  