(concurring in the result) :
I agree with the judgment, as well as with the court’s positions that (a) plaintiff was the responsible “person” under the statute for the period prior to November 10, 1952, (b) he was not, as the defendant admits, such a responsible “person” beginning with November 10th; (c) he acted “willfully”, within the meaning of the statute, during the time he was the responsible “person”; but (d) under the Internal Revenue Service’s policy he was not liable for any of the unpaid taxes (accrued before November 10th) because they could all have been collected from the company. This separate opinion is written because I cannot concur in the interpretation the court makes of, and the implications it draws from, the agreement between the company and the Service (dated October 1, 1952). The court’s opinion treats that agreement as if, by itself, it covered plaintiff, immunized him, and was made for his benefit. My view, to the contrary, is that this agreement related solely to the relations between the company and the Service, and did not by itself affect the separate and independent liability of the responsible “person” (plaintiff in this instance) under the “penalty” provisions of the legislation. This seems to me to follow from the teaching of the cases up to this one,1 as well as from the plain fact that plaintiff was not a party to the agreement, which nowhere mentions him or his separate liability, either expressly or by fair implication. If there were no Service policy applicable to this case, I would have to hold — particularly under the reasoning of the latest cases: Monday v. *974United States, 421 F.2d 1210 (C.A.7, 1970), cert. denied, 400 U.S. 821, 91 S.Ct. 38, 27 L.Ed.2d 48 (1970); Spivak v. United States, 370 F.2d 612 (C.A.2), cert. denied, 387 U.S. 908, 87 S.Ct. 1690, 18 L.Ed.2d 625 (1967); and Newsome v. United States, 431 F.2d 742 (C.A.5, 1970) — that the October 1st agreement had no effect on plaintiff’s distinct and independent obligation for the unpaid taxes accruing in the earlier period.
We have, however, now determined that the IRS policy mentioned in Spivak and Monday also existed in this case, and that crucial policy makes the difference. As Judge Skelton points out, the policy forbids collection of the “100 percent penalty” from the responsible person where the taxes involved can be collected from the corporation itself. In this instance, the taxes could clearly have been collected from Marine if the IRS had wished to do so, either from the company’s earnings or out of its distrainable property. The Service elected not to do so, but that was its own choice, apparently out of regard for the Navy’s desire to have contract performance continue and to recover back the Navy-guaranteed loan. If all the parties to the transactions, except IRS, had been private firms, the Service could (and probably would) have insisted on collecting the unpaid taxes. If it had refrained, as it did here, out of leniency or to allow production to continue or to help the private lender, the formal IRS policy would certainly have precluded collection from the responsible individual. It makes no difference that here the Navy happened to be the lender. The IRS had the same choice of whether to collect or not — it could have insisted on getting its taxes from the company — but it chose not to. The same consequences should follow as if the lender were a private bank.
From this viewpoint, I need not (as the court does) hold the Navy to blame or delve into the complex problem of when one agency of the Federal Government stands in the shoes of another. The focus is and should be on the IRS, not on the Navy. The latter was not a part of the October 1st agreement between Marine and the IRS; and I assume that the Navy acted lawfully, under the explicit terms of its V-Loan Guarantee Agreement, when it insisted, as any lender will if it can, that money coming into the company’s hands be first used to repay the Navy’s loan. But the Internal Revenue Service was not forced to agree to that order of priority, as it would not have been forced if a private bank were the creditor. The Service decided for itself to acquiesce in the Navy’s wishes, and that Service decision automatically brought into operation the policy against collecting from the responsible person where the tax can be collected by IRS from the corporation but is not. Cf. Spivak v. United States, supra, 370 F.2d at 615; Monday v. United States, supra, 421 F.2d at 1218 nn. 7-8. There is no reason implicit in the policy, or demanded by justice, for allowing the Navy to collect its debts first, without affecting the liability of the responsible person, if a private creditor would not have the same power.
. See Monday v. United States, 421 F.2d 1210 (C.A.7, 1970), cert. denied, 400 U.S. 821, 91 S.Ct. 38, 27 L.Ed.2d 48 (1970); Newsome v. United States, 431 F.2d 742 (C.A.5, 1970); Spivak v. United States, 370 F.2d 612 (C.A.2), cert. denied, 387 U.S. 908, 87 S.Ct. 1690, 18 L.Ed.2d 625 (1967); Kelly v. Lethert, 362 F.2d 629 (C.A.8, 1966); Singer v. District Director of Internal Revenue, 354 F.2d 992 (C.A.2, 1966); Cash v. Campbell, 346 F.2d 670 (C.A.5, 1965).