dissenting:
Although not cited, the majority opinion must necessarily rely ultimately upon Lucas v. Earl, 281 U.S. 111, 50 S.Ct. 241, 74 L.Ed. 731 (1930). That seminal opinion of the revered Oliver Wendell Holmes established the principle that income is taxable to the person who earns it — a principle that purportedly undergirds the analysis and result of the majority here. Justice Holmes held in Lucas v. Earl that an assignment of income by the income earner was not effective to shift the locus of tax liability. I am sure that Justice Holmes, keeping track of our work at his celestial Lexis terminal, is appalled to find his much-cited opinion invoked by the government and the Tax Court to extract taxes from a poverty-pledged nun doing corporal works of mercy1 on behalf of a religious community.
The government seems indeed to have changed its policy on demanding taxes from members of religious orders who have taken a vow of poverty.2 I do not *680disagree with the majority that the government may under most circumstances change its administrative practice. Cf. Dickman v. Commissioner, 465 U.S. 330, 342-43, 104 S.Ct. 1086, 1093-93, 79 L.Ed.2d 343 (1984). But here the government has nowhere denied that its change of position was anything but a pusillanimous reaction to the antics of the tax protest movement. Abuse of the tax system by tax resisters, who occasionally have recourse to religious disguises, is no good reason for unfairly changing the rules at the expense of genuine members of religious orders who have taken solemn vows of poverty.
The majority has preferred form over substance and has elevated the minutiae of an employment arrangement over the underlying reality of a religious status having binding contractual force. As Judge Kor-ner noted in the Tax Court on behalf of the seven dissenters there, “Petitioner clearly did not receive her paychecks under claim of right for herself, but only on behalf of, and as agent for, her Order, and she derived no personal benefit therefrom.” 84 T.C. 764, 789 (1985).
The majority has, I think wisely, rejected the extreme “agency triangle” theory espoused by the government and swallowed whole by a majority of the Tax Court. The majority also purports to turn away from Johnson v. United States, 698 F.2d 372 (9th Cir.1982) as too inflexible. In fact, the majority’s application of its own test looks somewhat like Johnson.
The majority ostensibly applies a “six-part” test derived from Fogarty v. United States, 780 F.2d 1005 (Fed.Cir.1986), which managed to establish the tax liability of a Jesuit priest, vowed to poverty, teaching at the University of Virginia, who endorsed his paychecks to his order in accordance with Roman Catholic cannon law and his own vows. Fogarty seems willing to concede, incidentally, that before the 1970’s the Internal Revenue Service always treated income of members of religious orders as income to their orders. See Fogarty, 780 F.2d at 1011 n. 6. This state of affairs would tend to buttress the view, which the IRS certainly has not denied, that its apparent change of approach is simply a response to the tax protest movement. This is hardly a reason that I find worthy of our sympathetic indulgence.
In any event, the six factors that the Federal Circuit mentions in Fogarty (with a minimum of analysis) do not cut against the taxpayer in the case before us. For example, with respect to the first factor, the degree of control exercised by the Order over the member, the majority concedes that Schuster had taken a vow of obedience under which she “was obligated to subjugate her will to that of the Order.”3 But the majority suggests that this pervasive form of control was somehow vitiated because “Schuster remained free to withdraw from the Order at any time.”4 There is simply nothing in the record to suggest that withdrawal was even a remote possibility and even the government has not argued that this is a legitimate consideration in these circumstances. Presumably Sister Francine Schuster’s solemn promise to God is as potent a constraint on her own conduct as would be some threat of legal sanctions. In any event, the possibility of Schuster’s withdrawal is entirely irrelevant because the issue is whether there is currently an agency relationship, not whether that relationship could be ter*681minated sometime in the future. If Sister Francine did leave the Order, she would retain no reversionary or other interest in the wages that had been paid for her services.
The majority concedes that Schuster is totally subservient to the direction of her superiors in the Order, but erroneously thinks it significant that the Order apparently did not choose explicitly to regulate her “day-to-day” activities. I see no good reason to expect the Order to control the daily details of the agent’s specialized employment. Rather, I think it pertinent to see whether the Order approved the particular employment in accordance with the Order’s mission, whether the Order continues to supervise the employment to ensure consistency with the Order’s mission and purposes and whether the Order retains a real potential for controlling the employment activities (even if exercise of this control might require the agent to quit).
The majority erroneously concludes, in discussing the second Fogarty factor— ownership rights as between the member and the Order — that Schuster’s entitlement to compensation was “clearly superior” to the Order’s. This is simply the traditional Lucas v. Earl approach, indiscriminately applied, and totally ignores the vows of poverty and obedience — not to mention Schuster’s faithful observance of those vows. The Supreme Court has held that such vows create a binding and enforceable contract. See Order of St. Benedict v. Steinhauser, 234 U.S. 640, 34 S.Ct. 932, 58 L.Ed. 1512 (1914). There is no indication that Lucas v. Earl overruled Steinhauser. The fact that Schuster received certain “perquisites” like annual leave and malpractice protection proves nothing. She received these as an agent of her Order, not personally.
As to the third and fourth factors derived from Fogarty, the purposes or mission of the Order as it relates to the type of work performed by the member, the majority concedes that these favor Schuster. Caring for the sick (or for poor mothers delivering babies) is a major purpose of the Order and was in fact the work that Schus-ter did on the Order’s behalf.5 Presumably she would have done the same work in the Order’s own facility had there been one. These are corporal works of mercy that have been carried on by Christian religious orders from the beginning.
As to the fifth and sixth factors, the majority undertakes an analysis of the details of the dealings among the Order, the National Health Service Corps, the Clinic and Schuster. I agree with the dissent in the tax court that much of this analysis is irrelevant, or at least blown out of all proportion to the really significant underlying realities.
The majority seems to be overwhelmed by the fact that petitioner was carried on the rolls as a Federal Government employee, was paid by a Federal Government check, and had all the protections and benefits that other Federal employees get, e.g., paid sick leave and vacations, retirement benefits and the like, all of which the majority discusses in great detail____
Why this relationship to the Federal Government is so important to the majority in deciding the case escapes me. Presumably, petitioner would have had some or comparable benefits if she had been employed in private industry____ The real question in the case is this: when compensation was paid to petitioner for her services at the clinic, did petitioner receive that paycheck under her own claim of right as a person who had independently contracted her services, or did petitioner receive such paycheck as the agent of the Order, under a preexisting and enforceable contract obligation to serve as such agent?
84 T.C. at 778-79 (Korner, J., dissenting).
That the NHSC would in general respond to Schuster in all of the bureaucratically *682sanctioned ways for dealing with government employees is simply not significant. Government agencies can hardly be expected to modify the forms of their behavior no matter how different may be underlying changes in substance. The facts are simply that both NHSC and the Clinic knew that Schuster was a nun committed by solemn vows to strict obedience to her religious superiors as well as to abject poverty.6 Both NHSC and the Clinic therefore knew who controlled her activities and who would actually receive any compensation paid with respect to her services. They hired her and paid her on that basis — namely as an agent of the Order. No more need have been shown.
I think a proper test for determining whether or not Schuster is employed and receives compensation as the agent of her Order would emphasize three factors. First, the question of the principal’s right to direct or control the agent’s activities in a meaningful way would be central. Here there is no question about the vow of obedience and the right to control. This very sweeping basis of control creates an agency relationship now; any prospect of Schuster's leaving the Order in the future is not before us and is irrelevant to the question we are required to answer.
On the issue of day-to-day control, the focus should be on the Order’s close supervision in the approval of the employment and the actual potential for promptly ending an employment relationship that no longer accords with the Order’s mission and purposes. Here the Order was intimately involved in negotiating for and approving Schuster’s job. Further, the Order periodically visits each Sister at her mission site to be sure that her employment continues to be in accordance with the Order’s purposes. Tr. at 24-25. In this connection, Schuster was directed by the Order to decline to perform work that conflicts with a moral precept observed by the Order. Tr. at 23. Schuster followed this directive, as evidenced by the fact that at one point she warned the Clinic that she could not dispense artificial contraceptives. Tr. at 52-53. The Order’s directive apparently resulted in changing the way she did, or would have done, her work. Certainly, as to almost any phase of her work, the Order could cause Schuster to sever the employment relationship if it disapproved of the direction of the job — as it could and would cause other nuns to quit in like circumstances. Tr. at 24. Because this sort of control seems quite fundamental, I have difficulty in seeing what sort of day-to-day control the majority would require in addition.
Second, it is important that the principal have the right to claim and take possession of the compensation earned by the agent without question and without the possibility of any effective adverse claim. Cf. Maryland Casualty Co. v. United States, 251 U.S. 342, 40 S.Ct. 155, 64 L.Ed. 297 (1920). There is no doubt that this criterion is fulfilled here. Although the checks for compensation are payable nominally to Schuster,7 she is under the obligation of vows both of poverty and obedience to endorse the checks forthwith to her principal, the religious community. Only by the most undiscriminating reliance on Lucas v. Earl can it be argued that Schuster ever has anything resembling control of the compensation at the expense of the Order. In *683Order of St. Benedict v. Steinhauser, 234 U.S. 640, 34 S.Ct. 932, the Supreme Court held that the traditional monastic vows create an enforceable property interest in the order. The decedent, a member of a teaching order who had taken vows of poverty, chastity and obedience, earned during his lifetime royalties and other emoluments which he failed to turn over to his order, as required. Upon his death, he left a valuable estate that his order claimed, and litigation ensued between the decedent’s administrator and the order. The Supreme Court held that the vows made by the decedent for the benefit of his order were a condition of his admission to the order. Hence, when he was admitted, a binding and enforceable contract was created and, as a result, the order was the true owner of the assets of the estate. Steinhauser therefore teaches that here there was an enforceable contract between Schuster and the Order giving the Order valid title to the paychecks and placing her in the position of agent to receive them and transmit them to her community.
In this respect, this case is on all fours with Poe v. Seaborn, 282 U.S. 101, 51 S.Ct. 58, 75 L.Ed. 239 (1930), which was decided only eight months after Lucas v. Earl. In Poe, the Supreme Court held that the earnings of couples living in community property states must be reported one-half by each,- irrespective of the fact that one spouse’s work generated all the income of the marital community. The Court reasoned that, in a community property state, the income earner is the agent of the marital community, and “the earnings [of the husband] are never the property of the husband, but that of the [marital] community.” Poe v. Seaborn, 282 U.S. at 117, 51 S.Ct. at 61. Similarly here under Stein-hauser Schuster’s earnings are never hers but are the property of the religious community for whom she is an agent. In Poe the husband became an agent for his wife when they married. In the case before us, Schuster became an agent of the Order for the purpose of furthering the Order’s mission when she entered it and took her vows of obedience and poverty. Thus there is nothing in the present facts to indicate that Schuster is ever in control of, or the owner of, or even the claimant of, the compensation and hence is not taxable on it.
The third criterion for determining whether the salary is taxable to the purported agent is whether the services performed are of a type within the mission or purpose of the alleged principal. Certainly here there is little doubt that Schuster, as a nurse-midwife for the poor, is performing a service squarely within one of the Order’s principal and traditional purposes of rendering health care.8 Here the Order authorized and directed one of its members to render nurse-midwife services at Su Clinica while on the payroll of NHSC. Under those circumstances the Order acted as principal in the arrangement with NHSC and the Clinic. The Order, had it possessed a facility like the Clinic, could have performed the same services more directly through Schuster still acting as its employee and agent. Merely because the Order acted by arrangement with NHSC and the Clinic should not result in taxable income to its agent, Schuster. The arrangements the Order and Schuster made here are simply the shifting to modern circumstances and a modern locale of the very services the Order apparently rendered from its inception. This is then merely a modern format for an ancient process.
Beside these three factors, there is little reason to give weight to the formal dealings between the member and the employer or the employer and the Order. These dealings were apparently given less weight even in Fogarty and are certainly secondary to those I have outlined above. While these ambiguous circumstances involving the dealings of the parties provide some evidence that an agency relationship did exist, these formalities are not necessary for such a relationship. If, as here, the employer — NHSC or the Clinic — knows of the unusual agency in all its ramifications and does not object but goes forward, it is without consequence that the employer *684fails to alter its customary employment practices to formally and explicitly acknowledge the status of the principal.
Certainly in substance, if not wholly in form, Francine Schuster is the agent of her Order in rendering nurse-midwife services at the Clinic. Both in law and in economic reality the compensation with respect to her services is at all times the property of the Order and is treated as such. The object of Lucas v. Earl was to put obstacles in the path of tax avoidance not to deny economic reality. Therefore, the compensation should not be taxable to Schus-ter.
Hence, I respectfully dissent.
. See St. Matthew 24:35-40.
. O.D. 119, 1 C.B. 82 (1919) generally relieved members of religious orders, who had taken a vow of poverty, of tax liability for funds turned over to the order. Rev.Rul. 123, 1968-1 C.B. 35, concerning a nurse who was a member of a religious order and who received salary checks from a hospital that she endorsed over to the order, determined that the nurse received no *680income because she acted as the agent of the order. But in Rev.Rul. 290, 1977-2 C.B. 26, and thereafter, the Commissioner seems to have altered his position generally in a direction more consistent with the one he takes in the instant case. All these positions seem ultimately to rest on an "agency" rationale, but the result for members of religious orders, such as Schuster, appears to have shifted.
. Sister Francine Schuster agreed, as a precondition to her admission to the Order, to "embrace the Father’s will as it is expressed in the constitution [of the Order] and as it is mediated through those who exercise authority in our congregation.”
. Of course, dispensation from a Sister’s vows is only granted if the application is approved by the Provincial Superior of the Order, by the General Superiors of the Order in Rome and by the authorities of the Roman Catholic Church. Tr. at 20-21.
. The purposes of the Order as expressed in its articles, included, inter alia, the "conduct of hospitals and institutions for the care and treatment of suffering humanity and to do all and everything necessary or convenient for the accomplishment of any purposes or objects and powers above mentioned or incidental thereto.”
. Besides the letters mentioned by the majority, Sister Francine’s official government personnel folder contains a letter that states:
This is to certify that SISTER MARY FRANCINE SCHUSTER, SS # 479-46-6684 is a member in good standing of the Adorers of the Blood of Christ, a tax-exempt religious organization, and is, therefore, a member of a religious order under a vow of poverty; that as a member in good standing of the Adorers of the Blood of Christ, her services are performed as part of the duties required to be performed by the member for/or on behalf of the order as its agent; and that all salaries or grants received by her accrue to the above-mentioned organization because of her vow of poverty.
Exhibit AV (App. B-420).
. That an agent is nominally the payee of a check is certainly not a good reason to conclude that the payee’s status as an agent has in some way been affected. Cf. 3 Am.Jur.2d Agency § 139 (1962).
. See supra note 5.