attorneys and accountants, it has been apparent to both classes of counsellors that the presentation of a tax case is a proceeding ordinarily requiring the services of both professions. Many worthy cases have been lost by lawyers and by accountants through failure to recognize the dual nature of appeals. This has been commented upon rather widely. The preparation and presentation of the usual appeal requires close cooperation. The lawyer while appreciating the legal competence of evidence fails to grasp fully its accounting significance. He furthermore finds the marshalling of his facts to be difficult. The accountant sees evidence from an accounting viewpoint and does not understand why the rules of evidence and legal niceties surrounding proof should alter the situation. It has been intimated that the taxpayer should retain both a lawyer and an accountant. In all cases of sufficient importance the author believes this to be a wise course.

The Board is a special tax court.-Congress has provided that the Board shall be "an independent agency in the executive branch of the Government" [1924 law, section 900 (k)]. The 1926 statute continues this status of the Board [Law, section 1000 (amending section 900 of 1924 law)] in spite of efforts to have it placed in the judiciary. However, by virtue of the powers and duties conferred by this law, it is a quasi-judicial tribunal, or in reality a special tax court. The sole executive function of the Board other than administering its own affairs, is the determination of the correct tax for any given taxable year for which the Commissioner asserts a deficiency which taxpayers claim to be in error on appeal.

The process by which the Board makes such determinations is that of a judicial body. Its authority to act in any given case or set of cases is properly referred to as its jurisdiction. Fortunately during its comparatively brief existence the Board's right to act has been questioned in a wide variety of cases: It has thus been enabled at an early stage of its history rather fully to inform taxpayers as to their rights in presenting appeals. In some instances these decisions have been questioned by the Commissioner by appeals to the courts.1 In this manner the Board and the courts will continue to mark out the Board's field of action.

Jurisdiction is statutory.-As a tribunal of special and limited jurisdiction the Board's powers are wholly statutory.2 It must act in substantial accord with the statute granting its powers. (Flint v. Horsely, 25 Wash. 648, 66 Pac. 59.) It has been held that boards established to review taxation, while they act judicially, are not

1So. Cal. Loan Assn.'s Appeal (4 B. T. A. 223); Chas. Hamel, former Chairman, Hearings before Ways and Means Committee (Revenue Revision, 1925), page 928; A. W. Gregg, General Counsel, ibid., page 932.

2

Gutterman Strauss Co.'s Appeal, 1 B. T. A. 243; Mill's Appeal, 1 B. T. A. 199; Lyon's Appeal, 1 B. T. A. 378; Todd Inc.'s Appeal, 1 B. T. A. 762; Northwestern Mutual Life Ins. Co.'s Appeal, r B. T. A. 767; Greene's Appeal, 2 B. T. A. 148; Brown & Ives Trustees' Appeal, 2 B. T. A. 936.

courts but a part of the machinery of taxation wholly within the power of the legislature to create and regulate. (State v. Wharton, 117 Wis. 558, 94 N. W. 359, 360.)

Jurisdiction not limited geographically.-The statute creating the Board extends its power throughout the United States although the principal office is required to be in the District of Columbia. The chairman is given authority to prescribe the times and places of meetings of the Board and its divisions but he must do so "with a view to securing reasonable opportunity to taxpayers to appear before the Board or any of its divisions with as little inconvenience and expense to taxpayers as is practicable." [Law, section 907 (e)].

Divisions have same jurisdiction as Board.-A division of the Board is given the same powers and duties as the full Board with respect to appeals assigned to it. Its determinations become the decisions of the Board unless within thirty days the Chairman directs that such decision shall be reviewed by the Board. [Law, section 906 (a) and (b).]

Jurisdiction limited to income, profits, estate, and gift taxes. The specific jurisdiction conferred by Congress in the 1924 law is that found in section 900 (e) requiring it to hear and determine appeals filed under sections 274, 279, 308 and 312 of the Revenue Act of 1924. Sections 274 and 279 relate to appeals in income tax cases and sections 308 and 312 provide for appeals in like manner in estate and gift tax cases.

The 1926 statute amended section 900 (e). The law now provides in section 1000 (amending section 904 of the 1924 law) that: "The Board and its divisions shall have such jurisdiction as is conferred on them by Title II and Title III of the Revenue Act of 1926 or by subsequent laws." Title II covers income taxes and Title III applies to estate and gift taxes. Thus the Board's jurisdiction is confined to income, profits, estate, and gift taxes.

Board's jurisdiction not exclusive.-The 1926 law, as did the 1924 law, gives taxpayers a choice between the Board, the United States Court of Claims and one of the Federal District Courts for the trial of their cases in the first instance.

Election of remedies.-There is a distinction between these two laws, however, which is most important. Under the former law, if taxpayers appealed to the Board and their contentions were disallowed, they might pay the tax, file claims for refund, and thereafter sue to recover the tax. Under the present law, however, this cannot be done, except in certain cases which are set forth on page 239. If taxpayers file their appeals with the Board, they must thereafter, in the event of unfavorable decision, appeal to a circuit court of appeals or the Court of Appeals of the District of Columbia. They may not pay the tax and file claims and start their cases de novo in the district courts. If taxpayers wish to have their cases tried by a federal district court or the Court of Claims, they must forego their appeals to the Board, pay the tax, file claims for refund and then bring their cases in the District Court or Court of Claims. as provided by law. (See Chapter 16.)

Jurisdiction over constitutional questions.-Prior to the passage of the 1926 law the Board refused to pass on constitutional questions. If a taxpayer elects to appeal a deficiency to the Board, he cannot sue for a refund in any of the federal district courts or the Court of Claims. It would therefore appear that the Board will be compelled to entertain constitutional questions. Certainly, it can not be said that constitutional questions can be raised only on review before appellate courts described in the law. In Brunt's Appeal (5 B. T. A. 134), the Board intimated that it would rule on constitutional questions.

It will be interesting to have the Board comment on the constitutionality of section 1207 which attempted by legislative enactment to reverse the Board's decision in the Guarantee Construction case. (See page 250.) The author has consistently taken the position that this section is unconstitutional on the ground that it merely interprets the law. Under the Constitution this is a province of the courts and not of Congress.

Appeals-Filing and Limitations

Who may appeal.-Any taxpayer who receives a statutory notice of deficiency of income, profits, estate or gift taxes may appeal. This includes, of course, resident and non-resident aliens, as well