Plaintiff cites Giannini v. Commissioner of Internal Revenue, 9 Cir., 148 F.2d 285. Defendant cites as particularly pertinent the cases of MacArthur v. Commissioner, 8 T.C. 279, affirmed in MacArthur v. Commissioner, 8 Cir., 168 F.2d 413, and Commissioner v. Wilder's Estate, 5 Cir., 118 F.2d 281, certiorari denied, 314 U.S. 634, 62 S.Ct. 67, 86 L.Ed. 509.         The two annuity contracts here under consideration were involved in a proceeding instituted in the Tax Court by Virginia M. MacArthur.

Where several things are to be done under a contract, and the money consideration to be paid is apportioned to each of the items, the contract is ordinarily regarded as severable. MacArthur v. Commissioner, 168 F.2d 413 (8th Cir. 1948), aff'g 8 T.C. 279 (1947); Canister Co. v. Wood & Selick, Inc., 73 F.2d 312, 314 (3d Cir. 1934). On the other hand, if the consideration to be paid is single and entire, the contract will ordinarily be held as entire, see United States v. U. S. Fid. & Guar. Co., 236 U.S. 512, 524-525 (1915); Traiman v. Rappaport, 41 F.2d 336, 338 (3d Cir. 1930), "although the subject thereof may consist of several distinct and wholly independent items," Fullmer v. Poust, 26 A. 543, 543 (Pa. 1893).

The cost of the annuity is considered to be the aggregate premiums or consideration paid for such annuity by the primary annuitant. MacArthur v. Commissioner, 168 F.2d 413 (C.A. 8, 1948), affirming 8 T.C. 279 (1947). Petitioners point out that section 22(b)(2) was amended in 1951 by the addition of the following new paragraph:

In the instant case the petitioner has failed to prove that, of the total amounts received by her during the taxable years from the company, the amount received as income was less than 3 per cent upon the investment in or premiums paid for the annuity in question. See Virginia M. MacArthur, 8 T.C. 279, 283. We are therefore unable to conclude that the application of section 22(b)(2) to the facts of the instant case results in the imposition of a direct tax upon property without apportionment which would violate the provisions of the Constitution of the United States above set forth.