dissenting:
This case is straight forward and should not cause the problems that it has. A partnership was organized to acquire, operate and eventually sell a motel. The partnership entered into a written agreement with a management firm (HCI) to operate the motel. The agreement is detailed and contains in specific terms the rights and duties of the parties with regard to all matters concerning the ownership and operations of the motel. There is no question that the contract was negotiated in good faith between experienced business' persons. There is no contention that the words used were not understood or were ambiguous, or need not be relied upon. Where a contract provision is “made in an arm’s-length negotiation by experienced and sophisticated businessmen, and absent some compelling and countervailing reason it should be honored by the parties and enforced by the courts.” M/S Bremen v. Zapata Off-Shore Company, 407 U.S. 1, 12, 92 S.Ct. 1907, 1914, 32 L.Ed.2d 513 (1971).
The Internal Revenue Code (“I.R.C.”) requires employers to withhold certain taxes from their employees’ salaries. The agreement between the partnership and the management company provides that the partnership is the employer of the motel’s staff and that all compensation to the staff shall be paid by the management company as agent of and on account for the partnership:
2.7 Owner as Employer. Except as provided in Section 2.8 below, all employees of the Property shall be employees of OWNER, and all compensation of such employees shall be paid by HCI as agent of and on the account for OWNER.
2.8 Employees of HCI. The general manager and the controller or any other employee employed at the Property and Motel that HCI may so designate shall be employees of HCI. In addition, HCI may assign other employees of HCI and its affiliates, not employed at the Property prior to such assignment, as members of the staff of the Motel. All such HCI employees will be paid HCI regular *332Compensation, and HCI will be reimbursed by OWNER therefore as provided in 2.11(b). (capitalization in original)
The I.R.C. establishes that the employer for whom a fiduciary or agent acts remains subject to the provisions of the law, including penalties. 26 U.S.C. § 3504.
The majority ignores the uneontroverted language of the agreement and moves to an examination of the daily operations of the motel. The majority finds the partnership’s lack of “physical control” and “opportunity to control the daily discretionary decisions of the agent” to be dispositive. Although extrinsic evidence may be considered to determine whether or not a contract is ambiguous, Sunstream Jet Exp. v. International Air Service Co., 734 F.2d 1258, 1268 (7th Cir. 1984), no such analysis is required here. The contract is comprehensive and the language is unambiguous. When someone agrees to assume responsibility, the duty of the courts is not to find a way out of enforcing that responsibility, but to enforce the clear words which create that obligation. M.S. Bremen, 407 U.S. at 12, 92 S.Ct. at 1914.
The majority cites for its assertion that the partnership is not liable for the taxes the rule that an agent who is called an independent contractor is one for whose physical acts the employer is not responsible. That rule is irrelevant in the face of clear contractual language, negotiated by experienced business people in an arm’s-length transaction setting forth the legal duties of the parties. The contract language is dispositive.
In addition, the cases cited by the majority do not deal with contracts where the parties set forth their legal relationships in positive detail. In Venneri, for example, the original subcontracting agreement was modified when the subcontractor had difficulty meeting his payroll. As a result of subsequent riders and an appended financing agreement, the employee/independent contractor distinction was called into question. Arthur Venneri Co. v. U.S., 340 F.2d 337 (Ct.C1.1965). Similarly, in Southwest Restaurant, the question concerning the identity of the employer arose because the wages of the employees of four corporations were paid from one payroll bank account. Matter of Southwest Restaurant Systems, Inc., 607 F.2d 1237, 1238 (9th Cir.1979). This case does not pose such problems. The partnership and the management firm knowingly bound themselves in explicit language and the partnership must now bear the legal responsibility it agreed to assume.
The reliance of the majority upon other provisions in the contract pertaining to the rights and responsibilities of the management agent address other issues and have no bearing upon the interpretation of the explicit language designating the partnership the employer and the management company as agent. As the employer, the partnership is responsible for the unpaid taxes.
I would reverse and require judgment to be entered in favor of the United States.