A-14428, A-14517, A-16875, MARCH 15, 1927, 6 COMP. GEN. 576

A-14428,A-16875,A-14517: Mar 15, 1927

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WITNESSES FOR THE COMMISSIONER OF INTERNAL REVENUE BEFORE THE BOARD OF TAX APPEALS - DEPOSITIONS - APPROPRIATION APPLICABLE THE APPROPRIATION FOR THE COLLECTION OF INTERNAL-REVENUE TAXES IS APPLICABLE TO PAYMENT OF THE LEGAL FEES OF A NOTARY PUBLIC OF OTHER OFFICER AUTHORIZED TO TAKE DEPOSITIONS. WHERE THE DEPOSITIONS ARE TAKEN AT THE INSTANCE OF THE COMMISSIONER OF INTERNAL REVENUE. WHETHER SUCH TESTIMONY IS TAKEN PURSUANT TO A FORMAL ORDER OF THE BOARD OR TO A STIPULATION OF THE PARTIES. 6 COMP. RELATIVE TO THE PAYMENT OF EXPENSES INCURRED IN THE TAKING OF DEPOSITIONS OF WITNESSES FOR THE COMMISSIONER OF INTERNAL REVENUE IN MATTERS PENDING BEFORE THE BOARD OF TAX APPEALS AND IN WHICH YOU SUBMIT FOR DECISION THE FOLLOWING QUESTIONS: (1) IF THE BOARD OF TAX APPEALS FAILS TO DESIGNATE A REVENUE AGENT WHO IS PHYSICALLY PRESENT AT THE PLACE WHERE THE DEPOSITION IS TAKEN.

A-14428, A-14517, A-16875, MARCH 15, 1927, 6 COMP. GEN. 576

WITNESSES FOR THE COMMISSIONER OF INTERNAL REVENUE BEFORE THE BOARD OF TAX APPEALS - DEPOSITIONS - APPROPRIATION APPLICABLE THE APPROPRIATION FOR THE COLLECTION OF INTERNAL-REVENUE TAXES IS APPLICABLE TO PAYMENT OF THE LEGAL FEES OF A NOTARY PUBLIC OF OTHER OFFICER AUTHORIZED TO TAKE DEPOSITIONS, AND OF OTHER LEGAL EXPENSES OF WITNESSES BEFORE THE BOARD OF TAX APPEALS, INCLUDING REPORTING AND TRANSCRIBING TESTIMONY, WHERE THE DEPOSITIONS ARE TAKEN AT THE INSTANCE OF THE COMMISSIONER OF INTERNAL REVENUE, WHETHER SUCH TESTIMONY IS TAKEN PURSUANT TO A FORMAL ORDER OF THE BOARD OR TO A STIPULATION OF THE PARTIES. 6 COMP. GEN. 485, MODIFIED.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE TREASURY, MARCH 15, 1927:

THERE HAS BEEN RECEIVED YOUR LETTER OF FEBRUARY 21, 1927, RELATIVE TO THE PAYMENT OF EXPENSES INCURRED IN THE TAKING OF DEPOSITIONS OF WITNESSES FOR THE COMMISSIONER OF INTERNAL REVENUE IN MATTERS PENDING BEFORE THE BOARD OF TAX APPEALS AND IN WHICH YOU SUBMIT FOR DECISION THE FOLLOWING QUESTIONS:

(1) IF THE BOARD OF TAX APPEALS FAILS TO DESIGNATE A REVENUE AGENT WHO IS PHYSICALLY PRESENT AT THE PLACE WHERE THE DEPOSITION IS TAKEN, AND DESIGNATES, FOR EXAMPLE, A NOTARY PUBLIC, MAY THE EXPENSES OF TAKING THE DEPOSITION OF WITNESSES FOR THE COMMISSIONER BE PAID OUT OF THE APPROPRIATION FOR THE COLLECTION OF INTERNAL-REVENUE TAXES?

(2) IF THE TAXPAYER AND THE COMMISSIONER HAVE ENTERED INTO A STIPULATION (UNDER SUBDIVISION (C) OF RULE 45 OF BOARD OF TAX APPEALS) AND NO ORDER OF THE BOARD HAS BEEN ISSUED, MAY THE EXPENSE OF TAKING THE DEPOSITION OF WITNESSES FOR THE COMMISSIONER BE PAID OUT OF THE APPROPRIATION FOR THE COLLECTION OF INTERNAL-REVENUE TAXES?

(3) MAY THE SERVICES OF AN EXPERT STENOGRAPHER BE PAID FOR AS EXPENSES OF TAKING THE DEPOSITION?

(4) MAY WITNESSES WHO VOLUNTARILY APPEAR BEFORE THE BOARD OR WHO VOLUNTARILY GIVE TESTIMONY BY DEPOSITION BE PAID THE SAME FEES AND MILEAGE AS WITNESSES SUMMONED BY THE BOARD OR WHOSE DEPOSITIONS ARE TAKEN PURSUANT TO A SUBPOENA?

THE BOARD OF TAX APPEALS WAS CREATED BY SECTION 900 OF THE ACT APPROVED JUNE 2, 1924, 43 STAT. 336, AS AMENDED BY THE ACT OF FEBRUARY 26, 1926, 44 STAT. 105, AS AN INDEPENDENT AGENCY IN THE EXECUTIVE BRANCH OF THE GOVERNMENT. SECTIONS 903 TO 1005, INCLUSIVE, PROVIDED FOR ITS ORGANIZATION AND PROCEDURE. SECTION 907 PROVIDED THAT THE PROCEEDINGS OF THE BOARD AND ITS DIVISIONS SHOULD 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 IN THE DISTRICT OF COLUMBIA AND THAT ALL REPORTS OF THE BOARD AND ITS DIVISIONS, INCLUDING A TRANSCRIPT OF THE HEARINGS, SHALL BE PUBLIC RECORDS OPEN TO THE INSPECTION OF THE PUBLIC EXCEPT THAT, AFTER THE DECISION OF THE BOARD IN ANY CASE HAS BECOME FINAL, CERTAIN DOCUMENTS INTRODUCED AS EVIDENCE MAY BE WITHDRAWN. SECTIONS 908 AND 909 PROVIDED THAT:

SEC. 908. FOR THE EFFICIENT ADMINISTRATION OF THE FUNCTIONS VESTED IN THE BOARD OR ANY DIVISION THEREOF, ANY MEMBER OF THE BOARD, OR ANY EMPLOYEE OF THE BOARD DESIGNATED IN WRITING FOR THE PURPOSE BY THE CHAIRMAN, MAY ADMINISTER OATHS, AND ANY MEMBER OF THE BOARD MAY EXAMINE WITNESSES AND REQUIRE, BY SUBPOENA ORDERED BY THE BOARD OR ANY DIVISION THEREOF AND SIGNED BY THE MEMBER. (1) THE ATTENDANCE AND TESTIMONY OF WITNESSES, AND THE PRODUCTION OF ALL NECESSARY RETURNS, BOOKS, PAPERS, DOCUMENTS, CORRESPONDENCE, AND OTHER EVIDENCE, FROM ANY PLACE IN THE UNITED STATES AT ANY DESIGNATED PLACE OF HEARING, OR (2) THE TAKING OF A DEPOSITION BEFORE ANY DESIGNATED INDIVIDUAL COMPETENT TO ADMINISTER OATHS UNDER THIS ACT. IN THE CASE OF A DEPOSITION THE TESTIMONY SHALL BE REDUCED TO WRITING BY THE INDIVIDUAL TAKING THE DEPOSITION OR UNDER HIS DIRECTION AND SHALL THEN BE SUBSCRIBED BY THE DEPONENT.

SEC. 909. (2) 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 PAYMENTS SHALL BE MADE BY THE SECRETARY OUT OF ANY MONEYS APPROPRIATED FOR THE COLLECTION OF INTERNAL-REVENUE 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.

THE RULES OF PRACTICE PRESCRIBED BY SAID BOARD, PURSUANT TO THE AUTHORITY VESTED IN IT BY THE STATUTE CITED, PROVIDE THAT A PROCEEDING SHALL BE INITIATED BY FILING A PETITION IN WHICH THE TAXPAYER APPEARS AS PETITIONER AND THE COMMISSIONER OF INTERNAL REVENUE AS RESPONDENT. THE COMMISSIONER IS REQUIRED TO FILE AN ANSWER TO SAID PETITION WHICH CONSTITUTES A JOINDER OF ISSUE. RULE 44 PROVIDES FOR THE ISSUANCE OF APPLICATION FOR SUBPOENAS, INCLUDING SUBPOENAS DUCES TECUM, AND RULE 45 PROVIDES FOR THE TAKING OF DEPOSITIONS AS FOLLOWS:

(A) APPLICATION TO TAKE.--- WHEN EITHER PARTY PROPOSES TO TAKE A DEPOSITION, A VERIFIED APPLICATION, WITH TWO CONFORMED COPIES, SHALL BE FILED WITH THE BOARD SETTING FORTH THE FOLLOWING:

(1) THE NAME AND POST-OFFICE ADDRESS OF THE WITNESS WHOSE DEPOSITION IS PROPOSED TO BE TAKEN.

(2) THE SUBJECT MATTER OR MATTERS CONCERNING WHICH THE WITNESS IS TO TESTIFY, TOGETHER WITH A STATEMENT OF THE REASONS WHY IT IS DESIRED TO TAKE THE DEPOSITIONS AND WHY THE WITNESS SHOULD NOT BE REQUIRED TO APPEAR PERSONALLY AND TESTIFY AT THE HEARING.

(3) THE TIME AND PLACE OF TAKING THE DEPOSITION AND THE NAME, POST OFFICE ADDRESS, AND OFFICIAL DESIGNATION OF AN INDIVIDUAL COMPETENT TO ADMINISTER OATHS UNDER THE REVENUE ACT OF 1926 BEFORE WHOM IT IS PROPOSED THAT THE DEPOSITION SHALL BE TAKEN.

(SEE FORM NO. 5.)

(B) ORDER FOR.--- UPON RECEIPT OF SUCH APPLICATION, THE BOARD WILL SERVE A COPY THEREOF ON THE OPPOSITE PARTY, ALLOW A REASONABLE TIME FOR OBJECTION THERETO, AND WILL, IN ITS DISCRETION, MAKE AN ORDER, COPY OF WHICH WILL BE MAILED OR DELIVERED TO THE PARTIES OR THEIR COUNSEL, WHEREIN THE BOARD WILL NAME THE WITNESS WHOSE DEPOSITION IS TO BE TAKEN AND SPECIFY THE TIME WHEN, THE PLACE WHERE, AND THE OFFICER BEFORE WHOM THE WITNESS IS TO TESTIFY, BUT SUCH TIME AND PLACE AND THE OFFICER BEFORE WHOM THE DEPOSITION IS TO BE TAKEN, SO SPECIFIED IN THE BOARD'S ORDER, MAY OR MAY NOT BE THE SAME AS THOSE NAMED IN THE APPLICATION TO THE BOARD.

(SEE FORM NO. 6.)

(C) BY STIPULATION.--- AT ANY TIME AFTER ISSUE IS JOINED THE PARTIES OR THEIR COUNSEL MAY, BY STIPULATION DULY SIGNED AND FILED, TAKE DEPOSITIONS. IN SUCH CASES THE STIPULATION SHALL STATE THE NAME AND ADDRESS OF EACH WITNESS, THE TIME WHEN, AND THE PLACE WHERE SUCH DEPOSITION WILL BE TAKEN, AND THE NAME, ADDRESS, AND OFFICIAL TITLE OF THE OFFICER BEFORE WHOM IT IS PROPOSED TO TAKE THE DEPOSITION. IN SUCH CASES NO ORDER TO TAKE SUCH DEPOSITION WILL BE ISSUED, BUT SUCH DEPOSITION SHALL BE TAKEN AND RETURNED BY THE OFFICER IN ACCORDANCE WITH THE RULES OF THE BOARD.

(D) MANNER OF TAKING.--- EACH QUESTION PROPOUNDED TO THE WITNESS MUST BE RECORDED AND HIS ANSWERS MUST BE TAKEN DOWN IN HIS OWN WORDS.

OBJECTIONS TO QUESTIONS OR ANSWERS SHALL BE EXPLICITLY BUT BRIEFLY AND CONCISELY STATED, BUT NO COMMENT, EXPLANATION, OR ARGUMENT OF ANY KIND SHALL BE RECORDED; NEITHER SHALL THERE BE RECORDED ANY COMMENT,EXPLANATION, OR ARGUMENT BY EXAMINING COUNSEL. ANY MATTER REPORTED IN VIOLATION OF THIS RULE MAY BE SUFFICIENT CAUSE FOR THE SUPPRESSION OF THE DEPOSITION.

(E) WITNESSES NOT NAMED IN NOTICE.--- IF BOTH PARTIES ARE PRESENT OR REPRESENTED AT THE TIME AND PLACE SPECIFIED IN THE NOTICE, EITHER PARTY MAY, AFTER THE EXAMINATION OF THE WITNESS PRODUCED UNDER THE NOTICE, BE ENTITLED TO PRODUCE AND EXAMINE OTHER WITNESSES; BUT IN SUCH CASE ONE DAY'S NOTICE MUST BE GIVEN TO THE ADVERSE PARTY OR HIS ATTORNEY THERE PRESENT, UNLESS SUCH NOTICE IS WAIVED.

THE TAKING OF DEPOSITIONS IS A PROCEDURAL MATTER AND IN VIEW OF SECTION 907 OF THE BASIC ACT, SUPRA, ESTABLISHING THE BOARD OF TAX APPEALS, IS PROPERLY FOR CONSIDERATION IN CONNECTION WITH THE PROCEDURE OF TAKING DEPOSITIONS FOR USE IN THE EQUITY COURTS OF THE DISTRICT OF COLUMBIA. SECTION 1058 OF THE CODE OF LAWS FOR THE DISTRICT OF COLUMBIA PROVIDES THAT:

ANY SUCH DEPOSITION MAY BE TAKEN BEFORE ANY JUDGE OF ANY COURT OF THE UNITED STATES; BEFORE ANY COMMISSIONER OR CLERK OF ANY COURT OF THE UNITED STATES; OR ANY EXAMINER IN CHANCERY OF ANY COURT OF THE UNITED STATES; BEFORE ANY CHANCELLOR, JUSTICE, OR JUDGE OR CLERK OF ANY COURT OF ANY STATE OR TERRITORY OR OTHER PLACE UNDER THE SOVEREIGNTY OF THE UNITED STATES, OR ANY NOTARY PUBLIC OR JUSTICE OF THE PEACE WITHIN ANY PLACE UNDER THE SOVEREIGNTY OF THE UNITED STATES: PROVIDED, THAT NO SUCH PERSON SHALL BE ELIGIBLE TO TAKE SUCH DEPOSITION WHO IS COUNSEL OR ATTORNEY FOR ANY PARTY TO THE CAUSE OR WHO IS IN ANY WISE INTERESTED IN THE EVENT OF THE CAUSE.

THE PROCEEDINGS BEFORE THE BOARD OF TAX APPEALS ARE ASSIMILATED TO JUDICIAL PROCEEDINGS, AS DISTINGUISHED FROM THE ADMINISTRATIVE PROCEEDINGS OF THE COMMISSIONER OF INTERNAL REVENUE IN THE ADMINISTRATION OF THE TAX LAW AND WITH RESPECT TO WHICH ADMINISTRATION CERTAIN OFFICERS AND EMPLOYEES OF THE BUREAU OF INTERNAL REVENUE ARE AUTHORIZED TO ADMINISTER OATHS. SEE SECTION 1115 OF THE REVENUE ACT OF 1926, 44 STAT. 117. AS THE COMMISSIONER OF INTERNAL REVENUE IS A PARTY RESPONDENT, REPRESENTING THE UNITED STATES IN PROCEEDINGS BEFORE THE BOARD OF TAX APPEALS, IT WOULD APPEAR, AS YOU SUGGEST, DOUBTFUL WHETHER OFFICERS OR EMPLOYEES OF THE EXECUTIVE DEPARTMENTS OF THE UNITED STATES, AND PARTICULARLY OF THE BUREAU OF INTERNAL REVENUE, ARE AUTHORIZED TO FUNCTION AS NOTARIES BEFORE WHOM DEPOSITIONS OF WITNESSES ARE TAKEN OR AS STENOGRAPHERS TO TAKE AND TRANSCRIBE THE DEPOSITIONS UNLESS THE PETITIONERS SHOULD SO AGREE AND STIPULATE IN PARTICULAR CASES AND SUCH STIPULATIONS SHOULD BE SECURED IN THE INTEREST OF ECONOMY WHENEVER POSSIBLE. THIS BEING TRUE, THE APPROPRIATION FOR THE COLLECTION OF INTERNAL-REVENUE TAXES IS AVAILABLE TO PAY THE LEGAL FEES OF A NOTARY OR OTHER OFFICER AUTHORIZED TO TAKE DEPOSITIONS AND OTHER LEGAL EXPENSES OF WITNESSES, INCLUDING REPORTING SERVICE IN TAKING AND TRANSCRIBING THE TESTIMONY, WHEN THE DEPOSITIONS ARE TAKEN AT THE INSTANCE OF THE COMMISSIONER OF INTERNAL REVENUE, WHETHER SUCH TESTIMONY IS TAKEN PURSUANT TO A FORMAL ORDER OF THE BOARD OR STIPULATION OF THE PARTIES.

WHERE A NECESSARY WITNESS VOLUNTARILY APPEARS AT THE INSTANCE OR REQUEST OF THE COMMISSIONER OF INTERNAL REVENUE AND GIVES TESTIMONY, SUCH WITNESS MAY BE PAID THE SAME FEE AND MILEAGE AS WITNESSES SUMMONED BY THE BOARD OR WHOSE DEPOSITION IS TAKEN PURSUANT TO A SUBPOENA. THE CONTROLLING CONSIDERATION IS NOT COMPULSION ON THE WITNESS, BUT THE FACT OF HIS BEING USED BY THE COMMISSIONER TO GIVE TESTIMONY.

IN SO FAR AS IT MAY APPEAR THE DECISIONS OF THIS OFFICE DATED JULY 9, 1926 (A-14517), AND JANUARY 22, 1927 (A-16875), 6 COMP. GEN. 485, ARE IN CONFLICT WITH THE VIEWS HEREIN EXPRESSED, THEY ARE MODIFIED ACCORDINGLY.