an attorney. This privilege is for the client and only he may waive it. The attorney may never disclose even after the trial is closed unless the client permits. If an eavesdropper overhears a privileged communication or a third person unlawfully obtains the information it may be divulged on the stand regardless of the privilege between the parties.

Decedent's evidence.-Where a person who would be a proper witness if living, has died, it may be possible to introduce his testimony through the exceptions to the hearsay rule by means of ancient documents, personal books, admissions against interest and in proper cases through correspondence after establishing handwriting.

Weight and sufficiency of evidence.-Whether the evidence is strong enough to warrant a finding is a matter within the province of the court in a case tried without a jury. Courts follow certain well-recognized principles. The first of these is that the verdict must go to the party having the preponderance of evidence on his side. In determining whether the evidence preponderates positive testimony is ordinarily more weighty than negative. That is, testimony affirming the existence of a fact is entitled to more weight than testimony that the fact does not exist, since the latter testimony is quite possibly based merely upon ignorance. Testimony of parties or interested witnesses theoretically is not entitled to the same weight as that of disinterested persons. The uncontradicted evidence of a disinterested witness must be taken as true unless in conflict with the natural probabilities or with the facts as established in other connections. It is said that it requires an extraordinary case to authorize the court to regard sworn testimony as manifestly impossible or untrue. Mere disagreement in the testimony regarding details would not warrant holding the entire testimony to be incredible.

6

Evidence in writing is usually given more weight than testimony from memory. There is no rule that testimony in court is entitled to more weight than that by deposition or evidence given at a former trial. There is no rule that weight of evidence is to be determined by the number of witnesses. Belief depends upon the facts, the knowledge shown, the manner of testifying and the probabilities.

*Ruling Case Law, page 1008, section 198.

Subpoenas. It may be necessary to use the process of subpoena to secure the appearance of witnesses or for the production of documentary evidence.

RULE 44. SUBPOENAS.

(a) How issued.-Except where issued at the instance of the Board or any Division thereof, subpoenas shall issue only after filing of a written application therefor.

(b) Application for.-The application shall specify the names and addresses of the witnesses required, the place where, time when, and before whom they are to appear and testify, and if documentary evidence is required, a sufficiently accurate description thereof to enable the witness to identify the documents.

(See Form No. 3, in Appendix B.)

(c) For production of documents.-In case a witness is required to appear and produce documentary evidence, the application and the subpoena should state whether the person so required should appear in propria persona or be permitted to designate some person who is familiar with the contents and meaning of such documents to appear in his place and produce the same.

(d) Service and proof.-Service may be made by any citizen of the United States over the age of 21 years, not a party to or in any way interested in the appeal, and competent to be a witness. Proof of service may be made by affidavit.

(See Form No. 4, in Appendix B.)

COMMISSIONER MUST OBEY SUBPOENA.-The Supreme Court of the District of Columbia has held (Oesterlein Machine Co. v. Blair, et al., June 29, 1925) that the Commissioner must respond to the subpoenas of the Board. The court ordered the Commissioner to produce data with reference to comparatives in a special assessment case. The Commissioner has appealed from this order.

Witness fees and mileage.—

RULE 60.-FEES AND MILEAGE.

The following is from the Revenue Act of 1926:

"Section 909. (a) Any witness summoned or whose deposition is taken under section 908 shall receive the same fees and mileage as witnesses in courts of the United States. Such fees and mileage and the expenses of taking any such deposition shall be paid as follows:

"(1) In the case of witnesses for the Commissioner, such payment shall be made by the secretary out of any moneys appropriated for the collection of internal revenues taxes, and may be made in advance.

"(2) In the case of any other witnesses, such payments shall be made, subject to rules prescribed by the Board, by the party at whose instance the witness appears or the deposition is taken.

"(b) This section shall take effect as of June 2, 1924, in the case of fees, mileage, or expenses accrued prior to, but remaining unpaid at the time of, the enactment of the Revenue Act of 1926."

No witness, other than one for the Commissioner, shall be required to testify in any proceeding before this Board until he shall have been tendered the fees and mileage to which he is entitled in accordance with the above provision of law.

Witnesses may not be required to testify for the taxpayer until the fees and mileage above provided for have been tendered. A witness may be willing to testify regardless of the fee; but if there is any question about his willingness to testify, the tender should be made.

The Commissioner now has specific authority to pay witness fees and mileage from the appropriation for the collection of internal revenue taxes. Such fees and mileage may be paid in advance. With this authority it is anticipated that more witnesses will be used by the Commissioner than has heretofore been the practice. The 1924 act provided that fees and mileage should be paid but did not specifically mention the appropriation.

Notices to produce.-Frequently documents necessary to the taxpayer's case are in the possession of the Commissioner. To comply with the best evidence rule, it may be necessary to secure the introduction of particular papers. This is done by several means. First, a request should be made of the General Counsel's attorney. If he gives assurance that the document will be available, his word may be relied upon if he understands clearly what is desired. One might comply with the formalities by giving a notice to produce by a letter which should specify exactly what is wanted and when and where it is to be produced. If more stringent methods are necessary the subpoena duces tecum may be availed of or certified copies may be secured in accordance with the provisions of 869 of the Revised Statutes.

After the pleadings have been filed by both parties, the case is ready for a hearing.

Settlements without hearing.-Many cases which are appealed merit settlement without the formality of hearings. In such cases. the attorney for the Commissioner should be approached and the facts of the cases laid before him. He will ordinarily be willing to go into a meritorious case, and if it is at all possible, will settle it without a hearing. In fact the Commissioner has publicly announced his desire that cases be settled without trial if at all possible. This policy has special application to cases in which proper consideration before the Income Tax Unit has not been possible. As has been stated elsewhere,1 the sixty-day Conference Unit has been established in the Income Tax Unit to handle such cases. The Commissioner hopes that eighty per cent of the cases on which premature action is or has been taken may be settled without a hearing. A special committee has also been established in the Appeals Division of the General Counsel's office to settle cases involving $500 or less. Aside from these special bodies the attorneys in charge of cases may also arrange settlements. If these attorneys will not go into meritorious cases the General Counsel or one of his assistants should be brought into the matter. Settlements of this nature are by stipu

1 See page 41.

lation, or the Commissioner in lieu of his answer may propose that the deficiency be determined according to a notice of settlement.

Hearing not necessary where only issue of law is involved. —If the issues raised are on questions of law only and there is complete agreement on the facts the case may be submitted to the Board without appearance of counsel, the argument of the law being made by brief. Counsel must be very careful in analyzing the case to see that it is one which may be submitted without personal appearance. A large number of the cases which have been dismissed by the Board are cases which the petitioners have submitted without appearance in the belief that no evidence was necessary. The following is the rule of the Board applicable to submission without personal appearance. Particular attention is called to the last paragraph.

RULE 29.-SUBMISSION WITHOUT PERSONAL APPEARANCE

A proceeding in which issue has been joined, in which no issue of fact is raised, or in which evidence of contested facts has been submitted other than by oral hearing before the Board, or one in which there is a contested motion not predicated on an issue of fact, and both parties are not present in person or by counsel at the time of hearing, will be regarded as submitted on the part of the absent party or parties. Briefs may be filed in lieu of personal appearance, but the Board may, in its discretion, require appearance for argument.

Where there is a joinder of issue on questions of fact, the provisions of this rule relative to submission without argument shall not relieve the party upon whom rests the burden of proof from adducing at the hearing proper evidence in support of the issues. Statements in the petition, ex parte affidavits, and briefs do not constitute evidence. Failure to adduce evidence in support of facts alleged in the petition and denied by the Commissioner in his answer will be ground for dismissal.

Rules of procedure. The proceedings at the hearing are governed by the 1926 law.

LAW. Section 1000. [Amending section 907 (a), 1924 law.] Notice and an opportunity to be heard shall be given to the taxpayer and the Commissioner and a decision shall be made as quickly as practicable. Hearings before the Board and its divisions shall be open to the public and shall be stenographically reported. The Board is authorized to contract for the reporting of such hearings, and in such contract to fix the terms and conditions under which transcripts will be supplied by the contractor to the Board and to other persons and agencies. The proceedings of the Board and its divisions shall be conducted in accordance with such rules of practice and procedure (other than rules of evidence) as the Board may prescribe and in accordance with the rules of evidence applicable in courts of equity of the District of Columbia.