of the whole or any part of the amount covered by the bond, and if as a result of such waiver any part of the amount covered by the bond is paid, then the bond shall, at the request of the executor, be proportionately reduced. If the Board determines that the amount assessed is greater than the amount which should have been assessed, then when the decision of the Board is rendered the bond shall, at the request of the executor, be proportionately reduced.

(i) When the petition has been filed with the Board and when the amount which should have been assessed has been determined by a decision of the Board which has become final, then any unpaid portion, the collection of which has been stayed by the bond, shall be collected as part of the tax upon notice and demand from the collector, and any remaining portion of the assessment shall be abated. If the amount already collected exceeds the amount determined as the amount which should have been assessed, such excess shall be refunded. If the amount determined as the amount which should have been assessed is greater than the amount actually assessed, then the difference shall be assessed and shall be collected as part of the tax upon notice and demand from the collector.

(j) In the case of the amount collected under subdivision (i) there shall be collected at the same time as such amount, and as a part of the tax, interest at the rate of 6 per centum per annum upon such amount from the date of the jeopardy notice and demand to the date of notice and demand under subdivision (i) of this section, or, in the case of the amount collected in excess of the amount of the jeopardy assessment, interest as provided in subdivision (h) of section 308. If the amount included in the notice and demand from the collector under subdivision (i) of this section is not paid in full within 30 days after such notice and demand, then there shall be collected, as part of the tax, interest upon the unpaid amount at the rate of 1 per centum a month from the date of such notice and demand until it is paid.

(k) No claim in abatement shall be filed in respect of any assessment made after the enactment of this Act in respect of any estate or gift tax.

Jurisdiction of estate taxes under prior laws are covered by section 318 of the law. The provisions of this section are similar to those for income taxes in section 283.42

Procedure is formal.-When the creation of the Board was considered by Congress there were differences of opinion as to how it should operate. As proposed by the Treasury its proceedings were to be informal. When the measure was under consideration in the Senate there was much pressure to require formal procedure. Finally, it was decided to let the Board determine the character of its proceedings. The law reads: "The proceedings of the Board and its divisions shall be conducted in accordance with such rules of practice and procedure . . . as the Board may prescribe." [Section 1000, amending section 907 (a) of the 1924 law.]

The Board decided formal procedure to be necessary. Two considerations prompted this decision: First, Congress seemed to have intended an independent de novo determination of the tax in contested cases; and second, a legal record seemed to be required since its findings of fact were to be prima facie facts in subsequent court proceedings.

The procedure adopted by the Board was attacked and commended at the hearings on the 1926 law. The prevailing opinion seemed to be that the policy was a wise one. While the need for formality was regretted, it was decided there was no good way to avoid it. The 1926 bill as originally drawn provided for procedure which was essentially that of a federal court. The law as passed provides that the procedure shall be as developed by the Board, but

that the rules of evidence applying in courts of equity in the District of Columbia shall prevail in the trial of cases.

The author deems it unfortunate that the Board has not been able to make some differentiation in the cases brought before it. There should be some feasible plan whereby both an informal and a formal docket could be maintained similar to the practice before both the Interstate Commerce Commission and the Federal Trade Commission. Placing a case on the informal docket of these commissions does not detract from the fact that it is a strictly legal proceeding in which the Commission and the parties are required to observe the fundamental rules of law. Each commission makes findings of fact in cases on the informal docket as it does in cases on the formal docket. These findings are the basis of subsequent proceedings in the circuit courts. When necessary, a case may be transferred from the informal to the formal docket. The problems may not be identical with those of the Tax Board but there is sufficient resemblance to warrant serious consideration. Doubtless the Board has given this consideration, but the handicaps, if any, should be overcome in the interest of expedition and saving in time and expense to taxpayers, to say nothing of assisting the Board in clearing its docket and making way for cases in which formal hearings can not be avoided.

When to appeal.-The first task confronting taxpayers or counsel is whether or not to appeal from a deficiency letter. If the deficiency has been contested before the Treasury Department by the same counsel, the question of appeal has probably been considered before receipt of the statutory notice. However, whether counsel are familiar with the facts or not it is advisable to review carefully the entire case in the light of the procedure and practice before the Board, as well as its decisions.

Before the petition is seriously considered the case should be gone over in detail with the client and his witnesses. The availability of the witnesses should be considered. Although they appear to be competent to prove given points, are they competent as a matter of judgment and of law? Just what do they know? How did they gain their knowledge-first hand from direct association with the transactions in questions, or from hearsay or general knowledge? Can they say, "I know this," and, when saying it, demonstrate that their knowledge comes from an exercise of their own senses rather than from hearing or seeing an account of the transaction? To give a

simple illustration suppose the question relates to a deduction for a bad debt. The elements are the existence of the debt and determination of its worthlessness and the writing off on the books in the taxable year. The bookkeeper may know that the debt was determined to be worthless and was written off in the taxable year, but he is not ordinarily competent to testify as to the determination of worthlessness and may not know as a fact that there was a debt.

Documents and other writings should likewise be closely scrutinized. It must be determined that they are not only "true" in and of themselves, but that some one having a reasonable and proper custody of them, and having knowledge of their contents or relation to the point at issue, is available to identify and stand cross-examination on them.

These suggestions may seem to call for a duplication of work and appear needlessly time consuming since the case has been gone over many times in preparation for presentation to and in conferences with the Treasury. But, when one considers the great difference between presenting a case to the Treasury and to the Tax Board and how easy it is to lose a meritorious case because of a weak link or a seeming contradiction in evidence, the old adage that what's worth doing at all is worth doing well is pertinent. The apparent facts set out in briefs may not be facts. They may be conclusions dressed up as facts.

In the Treasury it usually has been possible to secure extensions of time to produce evidence which it was not anticipated would be required, but this is not so before the Board. Taxpayers and counsel are presumed to know the rules of evidence. If they are not ready the Board may proceed with the case and the appeal will be dismissed or the deficiency approved.

The foregoing suggestions are well founded in traditions of the legal profession. The following is from an old English manual for attorneys:

Nothing is easier than to issue a writ (i. e., petition, etc.); that if improvidently issued, it will by and by come back to you with an awful tale of vexations and mortifying consequences. Inquire in every direction into facts; see your client himself; ask for and look at his documents, and consider them well; go to the witnesses, or send for them and hear for yourself whether they can and will really say what your client tells you they can and will; and if you entertain serious doubts, take an opinion on a case, candidly drawn, not slurring over or concealing features which you do not like; and let all this be done before the writ issues. Generally speaking, you ought to have under your eye the expected proof

of the witnesses before you issue your writ, or declare or deliver your pleas, and this in almost as exact detail as though the period had arrived for setting such matters forth in your brief, or for an opinion on evidence.

The next step is to consider the decisions of the Board. If they are clearly against the taxpayer, it would be folly to urge an appeal unless the decision was not unanimous or unless the case was so weak on the facts, or the Board so clearly in error that there is strong reason to believe that the Board can be induced to reverse its position, or that federal court decisions support the taxpayer's position. It may also be possible to differentiate the case under consideration from the decided cases either on the facts or the application of the law, even though at first blush, it might seem that the Board would decide adversely.

Frivolous appeals or appeals where it is practically obvious that nothing is to be gained should not be entertained. In fact, as has already been stated (page 258), the new law makes it possible for the Board to award damages up to $500 to the Government in cases. where it appears the appeal was taken only for delay.

If after examining the evidence as above outlined it seems that the probabilities are in favor of the taxpayer, then the appeal should be recommended and a petition drawn. From reading Tax Board decisions one could easily reach the conclusion that it is the too general practice to draw the petition first and to look into the probabilities afterwards-much to the embarrassment of all concerned.

Who may appeal.-Generally the law gives taxpayers who receive sixty-day letters or the equivalent the right of appeal. However, those standing in law in the place of taxpayers and authorized to receive the statutory sixty-day notice may appeal. That is, taxpayers or those legally liable for the tax in place of the taxpayers may appeal. The law specifies executors, trustees and other fiduciaries and transferees of assets. (See sections 280, 281, 316 and 317.) The exceptions to this general statement are found in section 282, relating to bankruptcies and receiverships. (See pages 261.)

Designation of parties.—

RULE 6.-DESIGNATION OF PARTIES

The proceeding shall be brought in the name of the party in interest. If an individual, the full given name and surname shall be set forth in