dissenting. I must dissent from the majority herein because, in my opinion, the record clearly shows that the element of control over the payment, or nonpayment, of the sales tax in this business was not vested in appellee Willis. The funds for the payment of the obligations of this company, inclusive of the sales tax, were deposited in the Union Commerce Bank in a cash collateral account. Here the bank had made the determination of which creditors to pay, which determination excluded the sales tax due.
It is my position that, absent a showing that the appellee had designed such an arrangement to avoid payment of the sales tax, or that he had some continuing control as to which creditors were in fact paid from these funds held by the bank, the individual taxpayer should not be held responsible pursuant to R. C. 5739.33.