(dissenting in part and concurring in part).
Having given further consideration to the issues involved in this appeal, I would grant the petition for rehearing and affirm the decision of the Tax Court.
In light of taxpayer’s admission that her husband’s withdrawals constituted embezzlements, I do not agree with my brethren that these funds were not embezzled and therefore not1 income. Moreover, I think that treating the withdrawals as loans ignores the fact that genuine “loans” require the consent of both parties at the time the funds are advanced. There was no agreement between the parties here.
I also think that under the facts of this case taxpayer is jointly and severally liable. Although Congress has not carved out any exceptions to joint and several liability, the courts have exonerated co-signers of joint returns if their signatures were the product of duress or fraud. Here, however, the Tax Court found that taxpayer voluntarily signed the joint returns and she could not therefore attribute her signature to duress. And any fraudulent conduct by Frank was related to the embezzlement of the funds and not to the procurement of her signature on the joint returns. The unqualified language of the statute therefore compels the imposition of liability.
In all other respects I concur in the original decision of the majority and in its order denying the petitions for rehearing.