The opinion
Disney, J., concurring: Considering the generality of the expression “on account of such bank” in section 3798 of the Act of March 1, 1879, as amended by -section 818 of the Revenue Act of 1938, considering the rather obvious intent of the statute to prevent diminution of the assets necessary for full payment of depositors of such bank, and considering the fact that section 311 of the Internal Revenue Code provides that transferee liability shall be assessed, collected, and paid in the same manner and subject to the same provisions as the deficiency in tax, it might offhand be thought that the majority opinion takes a view inconsistent with the purposes of the act. The statute does not say that the tax must be that of the bank, but only that it be assessed, collected, or paid into the Treasury on account of the bank, and, considering the object of the statute, it would seem reasonable to think that in this matter a tax was assessed on account of the bank, and here it is found as a fact that the payment will diminish assets available for payment to depositors. However, upon examination of the congressional committee reports involving the Revenue Act of 1938 in search for light on this matter, I find, in the conference report, the following language: “The liability of a bank * * * with respect to the deduction and withholding of taxes imposed upon others, or as a transferee of the assets of others, is not within the section in any event.” (Italics supplied.) Therefore, although the Senate report used broader language, that is, “Section 22 of the Act of March 1, 1879 * * * provides an exemption from Federal taxes in the case of certain insolvent banks * * (italics supplied) I conclude that the congressional intent is expressed in the language first above quoted from the conference report, that liability as transferee is not within the section and that the conclusion of the majority is correct. See Senate Report No. 1567, sec. 817, and the conference committee report, being House of Representatives Report No. 2380, Amendment 234, 75th Congress.
Oppee, t7., agrees with this concurring opinion.