OPINION
Petitioner received within 1 taxable year the total distribution payable to him under an employees’ trust which was exempt from tax under section 501(a). Consequently, we must decide whether the distribution was made “on account of the employee’s * * * separation from the service,” resulting in capital gains treatment under section 402(a) (2).2
Petitioner was a salaried employee of Philco-Penn from its inception and continued to be employed in the same capacity by Philco-Del until his retirement on June 30, 1965. He contends that when the corporate reorganization occurred the change in his employment from Philco-Penn to Philco-Del constituted a “separation from the service” of his employer, Philco-Penn, and claims that the lump-sum distribution he received from the trust was “on account of” that separation. Respondent joins issue on both points.
Passing for the moment the question whether the reorganization of Philco-Penn caused a “separation from the service,” we think it is perfectly clear that the distribution received by petitioner was “on account of” the reorganization. The facts establish a causal relationship between the reorganization and the distribution. On December 8, 1961, incident to the “closing” process, the board of directors of Philco-Penn amended the plan to authorize an election by the participants to remain in the plan or to withdraw from it and receive a lump-sum distribution. Since the board 'believed that the reorganization would not entail a “separation from the service” by its employees, within the terms of the plan, but that it was such occasion as to allow an election to withdraw, it considered the amendment necessary to authorize the extraordinary distribution.
Election and distribution to the withdrawing employees followed within 4 months of the closing date under the reorganization agreement. We do not read the phrase “on account of” to require strict coincidence in time of the date upon which the right to the distribution accrues and the date of “separation.” Accordingly, we view the distribution as having been made incident to and “on account of” the reorganization. Cf. E. N. Funkhouser, 44 T.C. 178, 184 (1965), affd. 375 F. 2d 1 (C.A. 4, 1967).
In reaching this conclusion, we disagree with petitioner’s argument that there was no real assumption 'and continuance of the plan by Philco-Del. We attach little significance to the fact that Philco-Del did not contribute to the plan in 1961 and that in 1963 Ford established its standard stock-purchase plan for the Philco-Del employees. Under the terms of the plan, the Philco board of directors had the unfettered discretion to make any or no contribution to the trust according to the best interests of the corporation. No contribution was made in 1960, the year before the reorganization, because of low earnings, a condition which continued through 1961. There is no requirement under section 401(a) that the employer contribute every year, and the inference that there was no bona fide adoption of the plan by Philco-Del cannot be drawn because the suspension of contributions was motivated by “business necessity.” Sec. 1.401-1 (b) (2), Income Tax Kegs. About half the participants remained in the plan after the distribution and continue to be subject to its provisions. Philco-Del’s adoption of the plan was more than a mere “formality designed to give it a short breathing spell until it could consummate the mechanics of discontinuance.” Jach E. Schlegel, 46 T.C. 706, 709 (1966).
This determination raises squarely the question as to whether the reorganization of the Philco Corp. resulted in an en masse “separation from the service” of its employees. It is well established that the transfer of a controlling interest in the stock of a corporation alone does not cause a “separation from the service.” See United States v. Johnson, 331 F. 2d 943 (C.A. 5, 1964); United States v. Martin, 337 F. 2d 171 (C.A. 8, 1964); Harry K. Oliphint, 24 T.C. 744 (1955), affirmed per curiam on another point 234 F. 2d 699 (C.A. 5, 1956). On the other hand, two earlier decisions of this Court based upon section 165(b), I.R.C. 1939, held that when, pursuant to a corporate reorganization, all the assets and liabilities of one corporation are transferred to another and the transferor corporation is dissolved, the employees of the transferor corporation are “separated from tbe service” of tlieir employer as of tbe date of dissolution, even though there is no change in the management, policies, or personnel of the transferor corporation. Mary Miller, 22 T.C. 293 (1954), affirmed per curiam 226 F. 2d 618 (C.A. 6, 1955); Lester B. Martin, 26 T.C. 100 (1956). The rationale of these cases has been tacitly accepted in some cases as applicable to section 402(a) (2), e.g., Jack E. Schlegel, supra; Rybacki v. Conley, 340 F. 2d 944 (C.A. 2, 1965); Thomas E. Judkins, 31 T.C. 1022 (1959); but it has been seriously questioned by others, e.g., United States v. Johnson, supra; United States v. Martin, supra; E. N. Funkhouser, supra.
The “separation from the service” criterion of section 402(a) (2) must be applied on a case-by-case basis. We conclude on the facts of this case that the reorganization of the Philco Corp. did not cause petitioner’s “separation from the service.” The enactment of section 402(e)3 of the 1954 Code and the legislative history relating thereto reflects the intent of Congress that, except in the year 1954, capital gains treatment should not be accorded to distributions spawned by “reorganizations which do not involve a substantial change in the make-up of employees.” S. Rept. No. 1622, to accompany H.R. 8300 (Pub. L. 591), 83d Cong., 2d Sess., p. 54 (1954). Moreover, as Judge Wisdom said in the majority opinion of the Court of Appeals for the Fifth Circuit in United States v. Johnson, 331 F. 2d at 949:
On its face, Section 402(e) seems to say that after 1954 distributions will not qualify for capital-gain treatment if they are made as a result of tbe termination of a plan incident to a corporate reorganization, even if tbe corporate employer is completely liquidated. Apparently, Congress was willing to approve Miller for one year, for tbe benefit of tbe limited number of persons wbo acted in reliance on that decision. In other words, after 1954 a separation from service would occur only on tbe employee’s death, retirement, resignation, or discharge; not when be continues on tbe same job for a different employer as a result of a liquidation, merger or consolidation of bis former employer.
"When viewed in this context, it is plain that “separation from the service” requires a change in the employment relationship in more than a formal or technical sense. The Court of Appeals in Johnson held that when one corporation purchases all the outstanding stock of a second corporation, then merges into the second corporation, there occurs a mere technical change in the employment relationship of the persons employed throughout by the surviving corporation. In the present case the first corporation (Ford) purchased all the assets and liabilities of the second (Philco-Penn), then changed the second corporation’s State of incorporation. In applying the provisions of section 402(a) (2) to these facts, we discern no meaningful distinction between the transfer of stock and the transfer of assets. We are left, then, with the question of whether, as to an employment relationship, a change in the employer’s State of incorporation is one of form or substance.
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OPINION
Petitioner received within 1 taxable year the total distribution payable to him under an employees’ trust which was exempt from tax under section 501(a). Consequently, we must decide whether the distribution was made “on account of the employee’s * * * separation from the service,” resulting in capital gains treatment under section 402(a) (2).2
Petitioner was a salaried employee of Philco-Penn from its inception and continued to be employed in the same capacity by Philco-Del until his retirement on June 30, 1965. He contends that when the corporate reorganization occurred the change in his employment from Philco-Penn to Philco-Del constituted a “separation from the service” of his employer, Philco-Penn, and claims that the lump-sum distribution he received from the trust was “on account of” that separation. Respondent joins issue on both points.
Passing for the moment the question whether the reorganization of Philco-Penn caused a “separation from the service,” we think it is perfectly clear that the distribution received by petitioner was “on account of” the reorganization. The facts establish a causal relationship between the reorganization and the distribution. On December 8, 1961, incident to the “closing” process, the board of directors of Philco-Penn amended the plan to authorize an election by the participants to remain in the plan or to withdraw from it and receive a lump-sum distribution. Since the board 'believed that the reorganization would not entail a “separation from the service” by its employees, within the terms of the plan, but that it was such occasion as to allow an election to withdraw, it considered the amendment necessary to authorize the extraordinary distribution.
Election and distribution to the withdrawing employees followed within 4 months of the closing date under the reorganization agreement. We do not read the phrase “on account of” to require strict coincidence in time of the date upon which the right to the distribution accrues and the date of “separation.” Accordingly, we view the distribution as having been made incident to and “on account of” the reorganization. Cf. E. N. Funkhouser, 44 T.C. 178, 184 (1965), affd. 375 F. 2d 1 (C.A. 4, 1967).
In reaching this conclusion, we disagree with petitioner’s argument that there was no real assumption 'and continuance of the plan by Philco-Del. We attach little significance to the fact that Philco-Del did not contribute to the plan in 1961 and that in 1963 Ford established its standard stock-purchase plan for the Philco-Del employees. Under the terms of the plan, the Philco board of directors had the unfettered discretion to make any or no contribution to the trust according to the best interests of the corporation. No contribution was made in 1960, the year before the reorganization, because of low earnings, a condition which continued through 1961. There is no requirement under section 401(a) that the employer contribute every year, and the inference that there was no bona fide adoption of the plan by Philco-Del cannot be drawn because the suspension of contributions was motivated by “business necessity.” Sec. 1.401-1 (b) (2), Income Tax Kegs. About half the participants remained in the plan after the distribution and continue to be subject to its provisions. Philco-Del’s adoption of the plan was more than a mere “formality designed to give it a short breathing spell until it could consummate the mechanics of discontinuance.” Jach E. Schlegel, 46 T.C. 706, 709 (1966).
This determination raises squarely the question as to whether the reorganization of the Philco Corp. resulted in an en masse “separation from the service” of its employees. It is well established that the transfer of a controlling interest in the stock of a corporation alone does not cause a “separation from the service.” See United States v. Johnson, 331 F. 2d 943 (C.A. 5, 1964); United States v. Martin, 337 F. 2d 171 (C.A. 8, 1964); Harry K. Oliphint, 24 T.C. 744 (1955), affirmed per curiam on another point 234 F. 2d 699 (C.A. 5, 1956). On the other hand, two earlier decisions of this Court based upon section 165(b), I.R.C. 1939, held that when, pursuant to a corporate reorganization, all the assets and liabilities of one corporation are transferred to another and the transferor corporation is dissolved, the employees of the transferor corporation are “separated from tbe service” of tlieir employer as of tbe date of dissolution, even though there is no change in the management, policies, or personnel of the transferor corporation. Mary Miller, 22 T.C. 293 (1954), affirmed per curiam 226 F. 2d 618 (C.A. 6, 1955); Lester B. Martin, 26 T.C. 100 (1956). The rationale of these cases has been tacitly accepted in some cases as applicable to section 402(a) (2), e.g., Jack E. Schlegel, supra; Rybacki v. Conley, 340 F. 2d 944 (C.A. 2, 1965); Thomas E. Judkins, 31 T.C. 1022 (1959); but it has been seriously questioned by others, e.g., United States v. Johnson, supra; United States v. Martin, supra; E. N. Funkhouser, supra.
The “separation from the service” criterion of section 402(a) (2) must be applied on a case-by-case basis. We conclude on the facts of this case that the reorganization of the Philco Corp. did not cause petitioner’s “separation from the service.” The enactment of section 402(e)3 of the 1954 Code and the legislative history relating thereto reflects the intent of Congress that, except in the year 1954, capital gains treatment should not be accorded to distributions spawned by “reorganizations which do not involve a substantial change in the make-up of employees.” S. Rept. No. 1622, to accompany H.R. 8300 (Pub. L. 591), 83d Cong., 2d Sess., p. 54 (1954). Moreover, as Judge Wisdom said in the majority opinion of the Court of Appeals for the Fifth Circuit in United States v. Johnson, 331 F. 2d at 949:
On its face, Section 402(e) seems to say that after 1954 distributions will not qualify for capital-gain treatment if they are made as a result of tbe termination of a plan incident to a corporate reorganization, even if tbe corporate employer is completely liquidated. Apparently, Congress was willing to approve Miller for one year, for tbe benefit of tbe limited number of persons wbo acted in reliance on that decision. In other words, after 1954 a separation from service would occur only on tbe employee’s death, retirement, resignation, or discharge; not when be continues on tbe same job for a different employer as a result of a liquidation, merger or consolidation of bis former employer.
"When viewed in this context, it is plain that “separation from the service” requires a change in the employment relationship in more than a formal or technical sense. The Court of Appeals in Johnson held that when one corporation purchases all the outstanding stock of a second corporation, then merges into the second corporation, there occurs a mere technical change in the employment relationship of the persons employed throughout by the surviving corporation. In the present case the first corporation (Ford) purchased all the assets and liabilities of the second (Philco-Penn), then changed the second corporation’s State of incorporation. In applying the provisions of section 402(a) (2) to these facts, we discern no meaningful distinction between the transfer of stock and the transfer of assets. We are left, then, with the question of whether, as to an employment relationship, a change in the employer’s State of incorporation is one of form or substance.
In answering this question, we place great weight on the congressional intent to ignore reorganizations not involving a “substantial change in the make-up of employees.” The employees of Philco-Penn became employees of Philco-Del in the same capacities simply by reporting to work on December 11,1961. No substantial change was made in the supervisory personnel after that date. Petitioner worked in the same capacity under the same superiors both before and after the reorganization. Apparently, the only personnel change involved the selection of a new president and a new production manager. The facts of this case do not establish a “substantial change in the make-up of employees” to render petitioner’s change in employment more than one in form only. Consequently, we conclude that there was no “separation from the service” which entitles petitioner to have his distribution taxed as a long-term capital gain under section 402(a) (2) .4 Since the distribution did not occur in 1954, section 402(e) is inapplicable, and petitioner must report the entire amount received in 1962 as ordinary income.
Since we have found that the instant distribution was made “on account of” the corporate reorganization,5 we believe that the adoption of the plan by Philco-Del does not serve as a basis for distinguishing the rationale of the Mary Miller case.6 Therefore, to the extent inconsistent with the result reached here, we consider the Miller case, as well as the Lester B. Martin case, to be abrogated by the provisions of the Internal Revenue Code of 1954. See the thorough treatment of this point in United States v. Johnson, supra at 946-949.
Reviewed by the Court.
Decision will be entered for the respondent.