RIECK

v.

COMMISSIONER OF INTERNAL REVENUE

CLARK, Circuit Judge.

For the third1 time in two years, we are urged to distinguish away a decision of the Supreme Court of the United States. We make no criticism of that. The principle of stare decisis 2 clearly does not go to the length of preclusion from persuasion. It may be, nevertheless, a rule of sufficient vitality to cause avoidance of directness. The cases indicate a tendency toward limitation to the “particular facts” rather than an express overruling. 3 This emphasis on “particular facts” undoubtedly encourages, however, a frantic search for differences of detail.

The principal case is an illustration. It involves the income taxation (or non) of the premium payments for the standard form of funded life insurance trust.4 The specific formal tax exaction5 was first introduced into the revenue law in 1924.6 Its opponents assailed it on the ground that it was unconstitutional. But, in the leading case of Burnet v. Wells 7 a five to four decision of the Supreme Court struck down the taxpayer’s contention. The pros and cons of the disagreeing justices have been almost too freely aired.8 They boil down *112to a difference, or should we say distinction, in conception. The majority recognize here, as elsewhere in the law,9 the “love and affection” that underlies and influences human conduct. So the “flow of satisfactions” arising from the discharge of a “moral obligation” to support one’s family is enough to avoid the stigma “arbitrary”. The minority, on the other hand, find reasonableness only in the more material considerations of title.

In his earnest search for that different particular, petitioner has relied upon a phrase in the majority opinion rather than upon the record. It reads: “if he was to preserve a contract right”.10 In it one detects, perhaps, a concession to the bare bones of title in contrast to the living flesh of altruism. The commentators on, and more especially the critics of, Burnet v. Wells, appraise it as at most a suggestion and not as gravamen.11 At any rate, the phrase does not even assume to state the facts. These facts appear quite clearly from the opinions of the Board of Tax Appeals and of the Circuit Court of Appeals for the Eighth Circuit. They are identical with those at bar and show that in the Wells case, as in this, the life insurance policies were simultaneously transferred. That being so, there is no more to be said.

Under this view, we need not consider the interesting .question of res judicata by reason of the Board’s decision with respect to the 1932 tax.12 Nor need we spend any time on the one 'minor factual difference between this and the controlling Supreme Court case. Here, the beneficiaries advanced to the trustees monies sufficient to pay the premiums when due. They were reimbursed as soon as receipt of the trust income permitted it. To ascribe any legal effect to this arrangement of convenience would bring about its universal adoption and so abrogate the entire rule.

The decision of the Board of Tax Appeals is affirmed.