section 907 (a)] that "the mailing by registered mail of any pleading, order, notice, or process in respect of proceedings before the Board shall be held sufficient service of such pleading, order, notice, or process." (See page 320.)

The following are the rules of the Board relating to service:

RULE 12.-SERVICE ON COMMISSIONER

Upon filing of a petition and the copies as prescribed in rule 7, the Board will serve a copy upon the Commissioner.

The Commissioner shall not be required to answer any petition unless and until he has been served with a copy thereof as herein provided. Service of copy of petition on the Commissioner, or a person designated by him, shall suffice in lieu of process.

RULE 15.-SERVICE OF ANSWER

Upon the filing of the answer the Board will serve one copy thereof on the petitioner or his counsel by registered mail.

RULE 16.-SERVICE ON COUNSEL

Service of any pleading, order, or notice upon the counsel of record shall be deemed service thereof upon the party.

When a case is contested on the facts a careful and painstaking preparation of the proof is necessary. While a proceeding before the Board does not require the strategy that is required in a case before the courts, nevertheless, success demands careful preparation. The most successful advocates, in summing up their experiences, state that as a rule the determination and analysis of the facts are the most important elements in a lawsuit.

The first step in preparing the case is to analyze the issues. In the former practice, the parties stated their propositions of law. Although there would scarcely be a dispute as to the wording of the law, there was frequently an issue as to its application. That is, the issues would be what the facts were, and whether the facts as proved came within certain provisions of the law. Although the taxpayer is no longer required to state his propositions of law, he is still under a necessity of ascertaining what the issues are, in order to determine what he is called upon to establish at the hearing. The issues may be determined in any case by comparing the Commissioner's answer with the assignments of error made by the taxpayer.

Necessity for evidence.—Many taxpayers in the early history of the Board thought it unnecessary to present evidence to the Board. Some thought it was only necessary to appeal and presumed that the statements made in the petition, in ex parte affidavits and in briefs were evidence of their contentions. Others thought that the

records of the Bureau were available to the Board and that documents filed with the Bureau and the facts as established in conferences and in other ways would be before the Board; that the Board simply determined whether the facts theretofore submitted sustained the taxpayer's position as a matter of law.

This belief was most natural since the official title of the Board indicates that it is an appellate agency and not a tribunal of first instance. Furthermore, taxpayers had the procedure theretofore existing before the Advisory Tax Board and the Committee on Appeals and Review in mind and quite naturally thought Congress had simply provided a similar agency except that it had been placed outside of the control of the Treasury to insure an impartial review.

As has been explained elsewhere, the Board did not deem its function to be that of review. It decided that since it was an independent agency and its findings of facts were to be the basis of subsequent proceedings in court, it could not rely on what had gone before. Accordingly it felt bound to devise a procedure whereby the whole proceeding started from the beginning. The appeal and the evidence presented in support thereof must conform to such rules as produce a record acceptable in the courts of law.

Everyone at all familiar with tax practice or disputes in any other field knows the necessity of evidence. In any disagreement between persons which is referred to a third person for decision, the arbitrator will ask each side to present proof of its contentions. The complexity or gravity of the dispute determines the character of the proof. If the arbitrator is a court of law or a tribunal of record whose proceedings are by law appealable to a court of law for review, the rules of evidence worked out in the courts of law usually control the presentation of the proof. This is, of course, the position of the Board. The Commissioner declares a tax to be due and payable. The taxpayer denies this. He may not, however, deny it in general terms, but must assert his basis and prove the supporting facts by legal evidence. He is required to do this since there is a rebuttable presumption that the tax asserted by the Commissioner is correct.

Burden of proof.1

RULE 30.-BURDEN OF PROOF.

The burden of proof shall be upon the petitioner, except that in respect of any new matter of fact pleaded in his answer, it shall be upon the respondent.

1 See Appendix C for a summary of decisions of the Board.

There is some doubt as to the force of this rule, since the burden of proof may be a rule of evidence rather than merely a rule of procedure and hence should be determined by the rules of evidence in the District of Columbia. Nevertheless it is likely that the rule in the District approximates that set forth in the Board's rules since the burden is placed ordinarily on the party complaining.

In law the term "burden of proof" has two generally recognized meanings. The one is the burden of proceeding or the burden of producing evidence at the several stages of the trial. This burden may shift. If the party originally having the burden establishes a prima facie case, his adversary then has the burden of going forward with the evidence, at the risk of an adverse decision. The burden of proof, however, in the second sense of the burden of convincing the jury or court by a preponderance of evidence in a civil action never shifts, but rests upon the party having the affirmative of the issue. In an appeal before the Board, the burden in this sense also appears to rest upon the taxpayer, except when the Commissioner pleads new

matter.

In view of the fact that assessments proposed by the Bureau frequently are based on revenue agents' findings which are not always carefully and competently made, the Board should not be too exacting as to the amount of evidence required to overturn the Commissioner's determination.

BURDEN WHEN FRAUD IS CHARGED.-When fraud is charged, counsel for the taxpayer should insist at the hearing that the Government must assume the burden of proof. (See cases cited in Appendix C.)

Reviewing case with witnesses prior to trial.-A short time before the hearing date counsel should review the case with his witnesses through whom he proposes to introduce the testimony at the hearing. The questions to be asked each witness should be prepared beforehand. There is no objection to going into the testimony quite fully with the witness. By thus reviewing the evidence the witness is placed at ease when on the stand and the evidence will be developed most effectively. The witness can further be cautioned as to what cross examination may be expected. Again, by discussing the case with witnesses beforehand, counsel can largely eliminate irrelevant testimony which may cloud the issues.

This review finally enables counsel to anticipate objections to

testimony. He can reframe his questions to meet the objections or prepare arguments in favor of the admissibility of the testimony.

Perpetuating testimony.-It may be that some vital witness is aged or in poor health or is about to leave the country. At the time the trial comes on, this witness may not be available. In such cases his testimony should be taken by deposition or at a special hearing. This may be done while the case is still pending before the Bureau if the appeal is imminent or a foregone conclusion. The Board's rules with respect to depositions are discussed on page 294. If the appeal had been filed, a motion to advance the hearing might secure the desired result. Finally the taxpayer could probably make a motion for a dedimus potestatem in any federal court or a motion to take testimony in perpetuam rei memoriam in any federal court on the equity side under the provisions of the Revised Statutes of the United States.2

In such a case, it would also be in order to request the Board by a proper motion to advance the hearing.

Rebuttal.-Preparation must also be made to rebut such proof as the Commissioner may introduce. If the Commissioner introduces no proof, he will rely on cross-examination to bring out his side of the case. Rebuttal to explain any matter thus brought out must be at hand. There is always plenty to do at a trial without having to take care of rebuttal on the spur of the moment. No matter how thorough the preparation, some surprises are almost sure to arise, but if counsel is well prepared, it will be easy to find a means to overcome adverse matter.

Preparing for argument.-Preparation for argument on the law of the case is likewise necessary. It is most important to be sure of the facts, but one must also be sure of his law. The law must be prepared relating to three phases of the case: to the right claimed or alleged error committed; to the remedy; and to the introduction of particular evidence. Questions usually arise regarding alleged errors of law committed by the Commissioner, and the introduction of evidence. Usually there is little argument as to the remedies, which are: recomputation of the tax, disapproval of the deficiency, the find

2 Revised Statutes, section 866. See Appendix A, sections 1058, 1060, 1061 and 1062.