The opinion
Holmes, J.,
dissenting. Although I agree with the basic proposition of law expressed here, i.e., that the liability of a responsible corporate officer or employee assessed pursuant to R. C. 5739.33 is not affected by the corporation’s proceedings in bankruptcy, I am not disposed to accept the premise that John Lawrence, this comptroller, is liable for this tax.
I am extremely hard pressed to understand the rationale of the majority herein that we are to read R. C. 5739.33 in such a strict and harsh manner as to hold an accountant, comptroller, agent, or employee of a business entity, liable in circumstances that reasonably show that the payment, or nonpayment, of these taxes was beyond the immediate control of the individual.
Here, the facts show that the banking institution within which the corporate funds were maintained seized all the assets in the accounts in order to satisfy some of the outstanding loans to the corporation extended by the bank. Further, there was a stop-payment order issued by the bank on all the outstanding checks of the corporation, which included checks in payment of the taxes in question.
I see no evidence adduced here that Lawrence had any control over the acts of the bank in stopping payment on these checks, which avoided the payment of these taxes. This failure of payment of the taxes due to these circumstances should not be attributed to this comptroller. The statute does not require this result.
The intent and purpose of the statute is to cover those instances when a corporate taxpayer would seek tax refuge behind a corporate officer or employee when the officer or employee might be knowingly aiding in such tax evasion. The intent of the statute is not to impress the tax liability upon those in charge of filing such return where the failure to pay the tax is shown to be beyond their control.
*110 The decision and order of the Board of Tax Appeals should be affirmed as it is not unlawful or unreasonable, and is supported by probative and substantial evidence.
C. Brown, J., concurs in the foregoing dissenting opinion.