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.