the caption. If a married woman, her given name shall be used. If a fiduciary, both the names of the fiduciary and of the estate, trust, or other person for whom he acts shall be used. In the event of a variance between the name set forth in the deficiency notice and the correct name, as used in the caption of the petition, a statement of the reasons for such variance shall be set forth in the petition. The original caption shall be placed on all papers filed. PARTIES IN INTEREST.-Some difficulty will be met with in determining "the party in interest." The Board's jurisdiction of petitions when brought by the wrong party has already been discussed on page 220. In Stange's Appeal [1 B. T. A. 810 (NA)] it was decided that one person may not appeal for a class. In the Fancy Hill Coal Work's Appeal (2 B. T. A. 142) it was held that a trustee of a dissolved trust was not the legal representative of the trust. In the Wiedemann's Appeal (4 B. T. A. 664) the Board held that the officers of a dissolved corporation may properly bring an appeal provided the statutes of the state of the corporation's domicile continue them as trustees in liquidation to wind up its affairs. There is also some question as to who may appeal as between the trustee and the beneficiary of a trust. Undoubtedly the trustee is the person liable for the tax. However, the beneficiary's tax liability and his other interests are also affected and he should be allowed to join in the appeal. This can be done by securing leave to file briefs as amicus curiae; and if the proper defense is not made the Board should permit the beneficiary or beneficiaries to be joined as petitioners upon a proper showing of interest. SUBSTITUTION Of parties.—Rule 37 of the Board's rules of practice provides for substitution of parties in the event of death or other cause or in case of mistake in the name or title of a proper party. RULE 37.-SUBSTITUTION OF PARTIES In the event of the death of a petitioner or for other cause, the Board may order the substitution of the proper parties. In event of mistake in the name or title of a proper party the Board may order substitution of the proper name or title in any proceeding before the Board. Conditions precedent to an appeal.-There is no specific provision in the act creating the Board which requires that an appeal be taken to the Commissioner and a hearing had before the Unit prior to filing an appeal. However, the law does require the determination of a deficiency by the Commissioner and a notice of this fact by registered mail. (See page 221.) The Commissioner has evolved a procedure within the Bureau which is predicated upon the assumption that the taxpayer will wish to avail himself of an opportunity to be heard prior to appealing to the Board. A taxpayer upon receipt of a thirty-day letter notifying him of a proposed deficiency may in reply ask for the final determination of a deficiency at once and thus secure an early hearing by the Board. Limitations on filing appeals.-An appeal to the Board is barred unless it is filed within the sixty days after the mailing of the letter notifying the taxpayer of a deficiency. [Law, section 274 (c).] The Chairman has outlined the position of the Board as follows: Appeals to the Board must be taken within sixty days after the mailing of the Commissioner's registered letter proposing an additional assessment. As the Board interprets the statute, the sixty-day limitation is fixed by law and the Board has no jurisdiction to extend it, either by granting extensions in specific cases, or by making general rules to the effect that appeals will be regarded as filed on the day on which they are mailed, or will be regarded as having been received on the day on which they should have been received in the due course of mails. The principal office of the Board is fixed by statute at Washington. An appeal cannot be regarded as instituted until the petition has been received there. This may seem a hardship to some who are very remote from Washington, such as the people of Hawaii and Alaska, but I believe that the purpose of Congress in allowing sixty days to appeal, as against the thirty days which were allowed under previous Acts, was to take care of the situation. In Matteson Co.'s Appeal (1 B. T. A. 905) the taxpayer mailed its appeal to and it was received by the Commissioner eight days before it was due. But the Commissioner did not turn it over to the Board until two days after the sixty-day period expired. The taxpayer was unfortunate. But it is unreasonable to expect the Commissioner to render messenger service. In spite of the clear statement of the law on this point, the number of appeals which have been denied for want of jurisdiction in such cases is surprising. The author does not question the correctness of the Board's conclusion on the authorities. The situation is one that calls for remedial legislation.1 The 1926 law provides that if the sixtieth day falls on Sunday, the appeal may be filed on the next day. [Law, section 274 (a).] No provision is made for holidays. It is just as essential that holidays be provided for as Sundays. The reason is the same. The 1 1 [Former Procedure] See Income Tax Procedure, 1926, page 510. Senate bill provided that all Sundays and holidays falling within the sixty-day period be excluded. This provision was modified in conference to the present form. The simplest provision would be to state that the Board is open for the receipt of petitions at all times. This would be a fiction, but it would make possible the filing of petitions on the day following a Sunday or holiday or after business hours on any weekday, provided in fact it was deposited at the Board's office or was in the mails so that it could have been filed within the sixty days, had the Board been open for business. There is no good reason why an appeal should not be considered as filed if it were out of the taxpayer's possession and would have been filed had the Board been open to receive it or delivery would have been made but for a Sunday or a holiday making this impossible. COMPUTATION OF TIME, SUNDAYS AND HOLIDAYS.-The following rule covers the computation of time for acts other than the filing of petitions. RULE 61.—COMPUTATION OF TIME-SUNDAYS AND HOLIDAYS When the time prescribed by these rules for doing any act expires on a Sunday or a legal holiday in the District of Columbia, such time shall extend to and include the next succeeding day that is not a Sunday or such legal holiday: Provided, That when the time for performing any act is prescribed by statute nothing in these rules shall be deemed to be a limitation or extension of the statutory time fixed. The following-named days are legal holidays within the District of Columbia: New Year's Day, January 1 (sec. 993 Revised Stat., relating to District of Columbia). Washington's Birthday, February 22 (Act of Jan. 31, 1879). Inauguration Day, every fourth year (Act of June 18, 1888). Fourth of July (sec. 993, Rev. Stat., relating to District of Columbia). Labor Day, first Monday in September (Act of June 28, 1894). Thanksgiving Day, day proclaimed by President (sec. 993, Rev. Stat., relating to District of Columbia). Christmas Day, December 25 (sec. 933, Rev. Stat., relating to District of Columbia). When legal holidays fall on Sunday, the next day shall be a holiday (Act of Dec. 20, 1881). The rule expressly excepts any time fixed by the statute. The rule also gives the legal holidays in the District of Columbia. When a legal holiday falls on Sunday, the day following is to be the holiday. In filing petitions due allowance must, therefore, be made for holidays, since it is not unusual for a holiday and a Sunday to fail together or immediately precede or follow one another. BUSINESS HOURS.-The business hours of the Board must also be kept in mind. While the business day closes at 4:30 P. M., it is likely that if a petition was placed in the hands of a Board member or some of its officials after hours, that this would constitute filing. RULE I.-BUSINESS HOURS The office of the Board at Washington, D. C., will be open each business day from 9 o'clock a. m. to 4.30 o'clock p. m. What a Tax Board proceeding consists of. Before going into detail of the practice before the Board, it may be helpful to those not familiar with this practice to have described a Board proceeding as a whole. In summary form, the steps taken in the preparation and presentation of cases are as follows: 1. Petition by taxpayer. 2. Answer or motions by Government. 3. Marshalling of evidence. (a) Interviewing witnesses regarding testimony. (b) Examining books, papers and documents and determining method of introduction and substantiation. (c) Entering into stipulations and agreements as to ex parte affidavits with the General Counsel. (d) Taking depositions. 4. Procedural motions by parties. 5. Hearing. (a) Opening statement of counsel. (b) Introduction of proof. (c) Argument. 6. Briefs. Petition. The appeal to the Board is initiated by a petition as provided by the following rule: RULE 5.-INITIATION OF A PROCEEDING-PETITION A proceeding shall be initiated by filing with the Board a petition, as provided in Rules 6, 7, and 8. It shall contain: (a) A caption in the following form: (b) Proper allegations showing jurisdiction in the Board. ) A statement of the amount of the deficiency, the nature of the tax, the year for which asserted, and the amount thereof (as nearly as may be determined) in controversy. (d) Clear and concise assignments of error alleged to have been committed by the Commissioner. Such assignments of error shall be numbered. (e) A clear and concise statement of the facts upon which the petitioner relies as sustaining the assignments of error. (f) A prayer, setting forth the relief sought by the petitioner. (g) A vertification by the petitioner. (h) A copy of the notice of deficiency shall be appended to the petition. The petition shall be complete in itself so as fully to inform the Board of the issues to be presented. The petition shall be signed by the petitioner or his counsel and shall be verified by the petitioner. The signature of counsel shall be in individual and not in firm name. The name and mailing address of the petitioner or of counsel shall be typed or printed immediately following the signature. The signature of counsel and the verification of the petitioner to the petition shall be considered the certificate of each that there is good ground for the petition, that the proceeding has not been instituted merely for delay and is not frivolous. A specimen petition is given in Appendix B. In preparing petitions the rules should be closely followed. A petition is part of a new proceeding. Nothing that has gone before is of particular moment except that when considering the evidence pro and con the admissions and data in the correspondence and papers on file in the Bureau may be important. The sixty-day letter is merely the starting point. It is not enough to deal with this letter by way of a petition, the whole case must be stated anew. Definiteness of issue is the aim of all pleadings. To get a clearcut decision, the presentation must be clear. In the last analysis the whole case comes back to the petition and if this frames the issues definitely everything which follows will partake of its character. The petition is not just another form to fill out. Forms are very valuable but they are merely conveniences. Their function is to marshal the material so as to secure uniformity and to insure that all of |