with whom EDGERTON, BAZELON and FAHY, Circuit Judges, join (concurring in part and dissenting in part).
I agree with the opinion of the court in parts I and II thereof, which deal with the exhaustion of remedies and the involuntariness of the tax payment. And I also agree with the court’s disposition, in part 111(b), of the point about the management of some of the rented properties. I dissent from part III (a). My views were indicated in the opinion I wrote for the majority of the division, handed down January 7, 1960, and I adhere to those views. The pertinent part of that opinion is printed as an appendix to this dissent.
I think the court fails to recognize well-established differences on two points. First, there is a clear difference between purchasing notes and lending money, even though the loan is secured by a mortgage note. Banks know and observe the difference, because the usury laws apply to one but not to the other. Other laws require licenses, under strict supervision, for one, if the amounts are small, but not for the other. The difference is well established. The whole testimony in this case, including Dr. Brady’s and his documentary exhibits, describes his course of action as lending money.
Second, there is a difference between doing business and economic activities which are not doing business, although the line, like many lines in the law, is sometimes hazy. The criterion is, as Mr. Justice Frankfurter pointed out in his concurring opinion in Deputy v. Du Pont,1 whether one holds himself out to others as the source of goods or services. *118This record is conclusive that Dr. Brady, through his agent, held himself out as a source of money for loans on real estate. His agent testified that the difference between the Doctor and a building and loan company was that it took less time to get money from the Doctor.
To say that the Doctor was not in business, because he was “investing”, begs the question. A person can “invest” money in the course of conducting a business, and very many do so. Grocers and haberdashers invest their money in a business and conduct the business. It is not helpful in the present sort of problem to say that a grocer is not conducting a business, he is just investing his money. To describe Dr. Brady’s activities as “investment in first trust notes” does not advance the discussion. A bank or a loan association makes “investments in notes” when it lends money on first trust security.
The difference between doing business and merely managing one’s money as a personal affair was the subject of much and hotly contested litigation in the days when the Internal Revenue Code allowed the deduction of business expenses but not the deduction of expenses incurred for personal investment purposes. The line was drawn in many cases and is as I have stated it.
I read Stone v. District of Columbia2 exactly contrary to the way my brethren of the majority read it. The facts in that case are like those in this case, except for variations which bring this case more clearly within the tax statute than that one; Dr. Brady’s lending of money was more clearly a business than was Stone’s purchase of notes. I see no pertinent difference between Stone’s devotion of his own time to his business and Brady’s use of an agent for that purpose.
I do not read the facts as showing that Dr. Brady “was known to practically only Sullivan Brothers”. That firm was his agent, but the loans were made by him, not them, and the notes were payable to him, not them; he must have been known to his debtors.
Incidentally, and parenthetically, my brethren call seven of Dr. Brady’s transactions in 1955-56 “note renewals”. The record does not so describe them. The record, which is Dr. Brady’s own exhibit, describes them as “Refinance transactions”, which I understand to include the rearrangement and replacement of existing outstanding loans on property. “Refinancing”, as I understand the term, does not mean simply note renewals or extensions. It may, and usually does, involve new loans and new lenders. When a corporation, for instance, says it is-going to “refinance” a certain part of its operation, it does not mean that it is merely extending existing notes or bonds.
Appendix to Dissent
Writing for a majority of a division of the court in an opinion promulgated January 7, 1960 (vacated by the court en banc in the opinion of June 30, 1960) Judge Prettyman wrote, in part:
(a) The Alleged Business of Lending Money.
It is argued to us that Dr. Brady merely purchased first trust notes, an investment activity on his part. Two questions of law arise, (1) whether the transactions were the lending of money or were the purchase of first trust notes and (2) whether the transactions constituted carrying on a business.
But first, as a preliminary matter, we note that the use of the word “investment” in connection with the foregoing problem does not advance its solution. “Investments” may be made in many sorts of property and also in many sorts of activities or businesses — in real estate, in stocks or other securities, in a grocery store or a construction project. Money might be “invested” in either a money-lending business or in the purchase of a note. To say that one type-of transaction is an “investment” does-not differentiate it from the other type..
*119At least as early as 1787 it was established that lending money and buying trust notes are two entirely different activities.15 The lending of money involves a lender-borrower transaction in money. It involves the negotiation and execution of a contract between the supplier of the money and the recipient thereof, specifying the terms of an agreement, the dates of payments on the principal, the period of the loan, the interest to be paid, the dates of such payments, and whether security is to be furnished and, if so, the type and amount. The law puts a maximum upon the rate of interest which can be charged on a loan of money. It usually requires that a license be obtained to engage in the business of making small loans.16 The buying of trust notes, on the other hand, is a merchandising transaction. The purchaser acquires a salable security, as is, for money. The price is a market value, which may be more or less than the face of the security. The law places no restriction upon the amount of money which a purchaser may make upon the sale of purchased notes. The case in 1787, which we have cited,17 pointed out that a person may purchase a note at any amount of discount without incurring the dangers of usury. The difference between a loan and the purchase of a note, vital in considering the application of the usury laws, is of major importance to banks. It is discussed, with citations, in 8 Zollmann, Banks and Banking § 5192 (Perm.ed.1936).
Whether a given transaction is the lending of money or is the purchase of a note is a question of fact to be determined from the circumstances of a given case.
The second legal question, whether a given series of transactions is or is not a business, has been the subject of many court decisions.18 Not every loan is a business, but the lending of money can be a business. Not every purchase of securities is a business, but the purchase of securities can be a business. The distinction often applied by the courts is between a passive investor doing only what is necessary from an investment point of view19 and those whose activities are extensive, varied, continuous and regular. Such activities may constitute a business even though concerned only with a person’s own investments.20 Mr. Justice Frankfurter, concurring in Deputy v; du Pont,21 drew the line succinctly and clearly. He wrote: “To avail of the deductions allowed by § 23(a) [of the Federal Income Tax Act], it is not enough to incur expenses in the active concern over one’s own financial interest. ‘ * * * carrying on any trade or busi*120ness,’ within the contemplation of § 23 (a), involves holding one’s self out to others as engaged in the selling of goods or services.” Many criteria are described in the cases as guides for determining whether a given series of activities does or does not constitute doing business, but the underlying guides are whether the person does or does not hold himself out to others for the supply of goods or services and whether the activities are or are not extensive, continuous and regular.
With the foregoing rules in mind we turn to the facts in the case before us. Nothing in the evidence in this record supports the argument that Dr. Brady was merely buying notes. His activities were described by himself, and in great detail by a representative of Sullivan Bros., on the witness stand. Repeatedly these witnesses described the lending of money. For example, Dr. Brady testified as follows:
“[Q.] On March 17, 1952, you made a loan of $11,000.00 to a Mr. O’Keefe? [A.] Yes.
******
“ * * * that is how I take most of all my loans * * *.
* * * * * *
“* * * I depend on the Sullivan Bros, for the integrity of the man who is borrowing the money.”
And the representative of Sullivan Bros, testified:
"* * * This is a schedule of loans * * * made for Dr. Brady * * *.
* * * * * *
“On the loans we would receive a fee from the party that needed the loan.”
These are but a few examples of many similar statements. And Dr. Brady presented a series of exhibits entitled “Loans Made & Amount” for the several years. Nowhere in the record did a witness describe the purchase of a note. Indicative of the evidence was the answer of the Sullivan Bros, representative to a question as to why a seeker of funds would go to Dr. Brady instead of to a building and loan association — “Well, usually your main purpose is to save time.”
Dr. Brady’s money-lending was continuous, frequent and regular. His testimony and that of Sullivan Bros, demonstrate that fact. Dr. Brady had been making loans through Sullivan Bros, at least since 1939. In the tax years here involved (1955 and 1956) he made sixteen loans, totaling $164,700. He clearly held himself out to others as a source of money for borrowers. The record shows that contracts for these loans were negotiated on his behalf by his agent. It is elementary that one may carry on a business by use of an agent; indeed many of the federal income tax cases concern the deduction of compensation paid such agents. It is said that Dr. Brady loaned money only when he had it to loan. The same could be said of any lending institution.
Thus, from the facts of this case, the nature and incidence of the transactions, we think it is abundantly clear that this taxpayer was not simply investing money which he had but rather was receiving requests for loans and then supplying the funds.
Dr. Brady contends that this court’s opinion in Stone v. District of Columbia 22 cuts away the basis for saying that his activities constituted the business of money-lending. Quite to the contrary, the case held the taxpayer there to be engaged in business. There we accepted the “well settled” definition of business as that which occupies the time, attention and labor of men for the purpose of a livelihood or profit. Under this definition we held that the purchaser of second trust notes at discount, who did all his own work of record-keeping and of collection, and who was known as a *121source of second trust money, was “engaged in business” within the meaning of the statute. The whole purport of the opinion and the cases cited support the view we take here.
. 308 U.S. 488, 499, 60 S.Ct. 363, 84 L. Ed. 416 (1940).
. 91 U.S.App.D.C. 140, 198 F.2d 601 D.C.Cir.1952).
. Musgrove v. Gibbs, 1 Dall. 216, 1 U.S. 216, 1 L.Ed.2d 107 (Sup.Ct.Pa.).
. See, e. g., D.C.Code § 26-601 (1951 ed.).
. Supra note 15.
. One of the more important lines of such cases derived from the fact that until 1941 the federal income tax statute allowed the deduction of expenses only when incurred in carrying on a trade or business. 26 U.S.C.A. § 162. (Certain non-business expenses can now be deducted, 26 U.S.C.A. § 212.) On the question whether investing or trading in stocks or securities did or did not constitute a business, see the cases collected in P-H Fed.Tax Serv.Par. 11,015 (e).
. Kane v. Commissioner of Internal Revenue, 100 F.2d 382 (2 Cir., 1938); Foss v. Commissioner of Internal Revenue, 75 F.2d 326 (1 Cir., 1935).
. L. T. Alverson, 35 B.T.A. 482 (1937); Austin D. Barney, et al., Executors, 36 B.T.A. 446 (1937). See Maloney v. Spencer, 172 F.2d 638, 640 (9 Cir., 1949). Sec. 8.1(g) of the Regulations promulgated by the D. O. Commissioners on Oct. 16, 1950, under the District of Columbia tax statute here involved, provides: “Often the continuity, frequency and regularity of activities, as distinquished from transactions of an isolated or incidental nature, will be the factors which will determine whether or not the activities constitute the carrying on of an unincorporated business.”
. 308 U.S. 488, 499, 60 S.Ct. 363, 84 L.Ed. 416 (1940); and see Helvering v. Wilmington Trust Co., 124 F.2d 156, 158-159 (3 Cir., 1941), reversed on other grounds, 316 U.S. 164, 62 S.Ct. 984, 86 L.Ed. 1352 (1942).
. 91 U.S.App.D.C. 140, 198 F.2d 601 (1952).