United States v. Kaiser/Concurrence Douglas

Mr. Justice DOUGLAS, concurring.

While I join the opinion of my Brother BRENNAN, my view of the merits is so divergent from the rest that a word of explanation is needed. Bogardus v. Commissioner, 302 U.S. 34, 41, 58 S.Ct. 61, 65, 82 L.Ed. 32, in holding payments by stockholders to employees were, on the facts there present, gifts, said:

'There is entirely lacking the constraining force of any     moral or legal duty as well as the incentive of anticipated      benefit of any kind beyond the satisfaction which flows from      the performance of a generous act.'

Had a motion for a directed verdict been made by respondent at the close of the evidence, I think with all deference that it should have been granted, since my idea of a 'gift' within the meaning of the Internal Revenue Code is a much broader concept than that of my Brethren. As the opinion of the Court points out, this striker (who became a union member without solicitation several months after he began receiving benefits) had no legal or moral duty to picket or to do any other act in furtherance of the strike. There is no evidence that the union made these payments to keep this striker in line. It is said that these strike payments serve the union's cause in promoting the strike. Yet the whole setting of the case indicates to me these payments were welfare, plain and simple. Unions, like employers, may have charitable impulses and incentives. Here only the needy got the relief. Yet since (so far as the present record shows) respondent acquiesced in the submission to the jury, the United States received more favored consideration than it could claim as of right.

Mr. Justice WHITTAKER, with whom Mr. Justice HARLAN and Mr. Justice STEWART join, dissenting.