“ Having uniformly accorded different treatment to small pension, old age, and unemployment payments, depending on their source, whether they arose out of a private arrangement on the one hand, or under the Federal Social Security program on the other, the Commissioner is not disentitled to treat these strike benefits as he has the non-governmental payments in the past. Surely there is a fair basis for differentiating, for income tax purposes, payments under a comprehensive scheme of federal welfare legislation from private payments, although their ultimate social purposes may be similar. ”

“ A fair evaluation of the administrative materials in the Appendix does not lead to the conclusion that the Commissioner has uniformly treated so-called 'subsistence relief' as a relevant category of payments, and one not subject to tax. The only reason urged in this case for holding the Commissioner bound to follow rulings of non-taxability which he considers inapplicable is respect for an overriding principle of 'equal' tax treatment. The Commissioner cannot tax one and not tax another without some rational basis for the difference. ”

“ In 1957 the Commissioner of Internal Revenue ruled that strike benefits paid by unions to strikers on the basis of need, without regard to union membership, were to be regarded as part of the recipient's gross income for income tax purposes. ”

“ These Social Security rulings rely on no others, and no others rely on them. On the other hand, the Commissioner has uniformly treated as taxable non-governmental payments, either by employers, unions, or 'private' groups which have been similar to the Social Security benefits not taxed in their character as 'subsistence relief,' except for their private nature. ”

“ Benefit payments made 'under the Federal and State plan for unemployment compensation' by a state agency during unemployment periods. The payments are made from a fund held in the Treasury of the United States, established under the Social Security Act, called the Federal Unemployment Trust Fund. Money is deposited in the fund by the various States under the provisions of the Social Security Act. Held, payments not subject to income tax. ”

“ Payments made by German Government to persons persecuted by Nazi German Government who suffered damage to 'life, body, health, liberty, rights of property ownership, or to professional or economic advancement.' Held, because the payments are 'in the nature of reimbursement of the deprivation of civil or personal rights,' where they are on account of property taken away they are not income so long as they are less than taxpayer's basis in the property. Where payments are greater than basis they may or may not be income depending on the circumstances of the case. ”

“ While a jury endeavors roughly to compute the amount of damage inflicted, in the very nature of things there can be no correct estimate of the money value of the invaded rights. The rights on the one hand and the money on the other are incomparable things which can not be placed on opposite sides of an equation. ”

“ There are, to be sure, difficulties, not present where ordinary assets are involved, in applying this principle to compensation for the loss of something which has no basis and which is not ordinarily thought of as a capital asset, such as health or life or affection or reputation. With those difficulties we have no concern. The relevant question is whether the Commissioner has, or reasonably could have, applied a principle of reparation to deal with these cases, and the reasons given by him in Numbers 3, 4, 6, 7, 12, 14, 16, and 20 show that he has. ”

“ Respondent paid this amount, and after administrative rejection of a refund claim, sued for a refund in the District Court for the Eastern District of Wisconsin. A jury trial was had, and the court submitted to the jury the single interrogatory whether the assistance rendered to respondent was a gift. The jury answered in the affirmative; but the court entered judgment for the Government, n.o.v., on the basis that as a matter of law the assistance was income to the respondent, and did not fall within the statutory exclusion for gifts. ”

“ And so, assuming the correctness of the principle of 'equality,' it can be an independent ground of decision that the Commissioner has been inconsistent, without much concern for whether we should hold as an original matter that the position the Commissioner now seeks to sustain is wrong. ”

“ Payments to employees 'involuntarily thrown out of employment because of lack of work in a certain industry.' Payments made out of a fund established for that purpose under an agreement between 'an association of manufacturers' and an 'employees' association' and maintained by deductions from the wages of those employees who ratify the agreement and by equivalent contributions from the employers. ”

“ The program of strike assistance was primarily financed through the strike fund of the International Union, which had been raised through crediting to it 25 cents of the $1.25 per capita monthly assessment the International required from the local unions. The Local also had a small strike fund built up through monthly credits of 5 cents of the local members' dues and contributions were received in some degree, not contended to be substantial, from other unions and outsiders. ”

“ Payment made to taxpayer for the death of her husband on the Lusitania. Payment made by the Government of Germany through the Mixed Claims Commission of the United States and Germany. Held, payment not income. 'An award paid for the loss of a life is compensation for the loss, and as such is not embraced in the general concept of the term 'income.' In the instant case, the award is, in fact * * * to restore (the recipient) * * * to substantially the same financial and economic status as she possessed prior to the death of her husband.'
7. ”

“ First, it is urged that in a series of rulings since 1920 the Commissioner has treated both public and private 'subsistence relief' payments as not constituting gross income; that union strike benefits are not relevantly different from such 'subsistence relief' ”

“ He was single during the period in question, and the Union provided him with a food voucher for $6 a week, redeemable in kind at a local store; the voucher was later increased to $7.50 a week. The Union also paid his room rent, which amounted to $9 a week. If in need, married strikers and married strikers with children received respectively larger food vouchers. [3] The over-all policy of the International Union was not to render strike assistance where strikers could obtain state unemployment compensation or local public assistance benefits. ”

“ Some individualization of result is inevitable so long as it is left to courts to determine what is or is not a 'gift.' The diversities that may thus result are all the more inevitable in view of the scope left to the fact-finders-whether courts or jury-by our decision today in Commissioner of Internal Revenue v. ”