However, the Fifth, Seventh, and Eighth Circuits stand for a stricter interpretation of Rosenman. Although the before mentioned cases are not of recent vintage, they are nonetheless persuasive. Indeed, it often happens that those cases closer in time to the enactment of a statute or the handing down of a precedent are in a better position to assess its true character. See Ewing v. United States, 711 F. Supp. 265, 269 (W.D.N.C. 1989).Dowell v. Commissioner, 41 T.C.M. (CCH) 390 (aff'd in 10th Cir. in an unpublished opinion); Draper v. Commissioner, 32 T.C. 545 (1959); Fortugano v. Commissioner, 41 T.C. 316 (1963), aff'd, 353 F.2d 429 (3d Cir. 1965); Northern Natural Gas Co. v. United States, 354 F.2d 310, 173 Ct.Cl. 881 (1965); Moskowitz v. United States, 285 F.2d 451, 152 Ct.Cl. 412 (1961); Richardson v. Smith, 301 F.2d 305 (3d Cir. 1962); Hill v. United States, 263 F.2d 885 (3d Cir. 1959); Rose v. United States, 256 F.2d 223 (3d Cir. 1958); Binder, supra.

Those courts note that "if [Justice Frankfurter] had meant to draw a distinction between those who remit money under protest, taking care to specify they do not really believe they owe it all, and those who fail to say so out loud, he would have found the words to say so more clearly." Ewing v. United States, 711 F. Supp. 265, 270 (W.D.N.C. 1989). A number of courts have disagreed with the per se rule, reasoning that Rosenman does not bar treating monies remitted prior to an assessment as a payment of tax. Fortugno v. Comm'r Internal Revenue, 353 F.2d 429, 435 (3d Cir. 1965) ("Rosenman does not foreclose treating as a tax payment a remittance made prior to an assessment," and "we believe . . . the weight of authority [to be] that there must either be an assessment or an acquiescence in the proposed deficiency.