The opinion
SWYGERT, Circuit Judge,
dissenting.
I respectfully dissent. The very length of the majority opinion is an indication of the difficult and tortuous route the majority experienced in arriving at, what I consider to be, an incorrect result. Here a taxpayer, presumably of normal intelligence and *220 aware of her civic responsibilities, employed a reputable, experienced attorney to aid her in her duties as executor of her father’s estate. The attorney, with knowledge of the due date for a timely filing of the federal estate tax return, neglected to file it when due. After its preparation, it was filed three months and one day late. These are the simple facts and they call for a simple answer.
Unless we are to ignore the rudimentary rules of agency, the penalty was correctly assessed. If the taxpayer had not hired and then relied upon an attorney to aid her in the discharge of her fiduciary duties, there can be no doubt that unless a reasonable excuse was offered, she would have suffered the penalty assessed. The sole excuse she offered is that she hired and then relied on her attorney. That reliance proved to be faulty. Therefore, it cannot be characterized as a reasonable excuse. This case is as simple as that.
Judge Pell’s concern about the opening of a Pandora’s box is justified. The lid has indeed been pried open. Taxpayers and their attorneys will hereafter realize that they shall likely suffer no adverse consequences by late filings of estate tax returns. Today’s decision has blunted the salutary objective of the penalty statute. Moreover, the court has indirectly but effectively immunized a negligent attorney from what appears to be an open and shut malpractice suit. Public policy considerations should militate against such immunization.
I would reverse the district court’s judgment.