clusive evidence.36 Parole evidence of conclusions drawn by officers of the taxpayer is not sufficient.37

Section 72. Ex Parte Affidavits.38 Ex parte affidavits will not be received as evidence on disputed questions of fact unless the affidavit is first submitted to the opposing counsel prior to the hearing and his consent to the introduction thereof obtained.39 Even where permission to submit such evidence is obtained it is evident that such testimony by reason of its nature can not be of great value.

Section 73. Oral Depositions. The Revenue Act of 1924 provides that the Board may order the taking of a deposition before any designated individual competent to administer oaths under the Revenue Act of 1924.40 It is required that the testimony be reduced to writing by the individual taking the deposition and subscribed to by the deponent." The following paragraphs of this section state the rules laid down by the Board in accordance with this authority.42

The right of taking depositions is granted by the Board for the convenience of the parties and is not intended as a means of of securing continuances. Ordinarily the party desiring the deposition must move promptly. Where, however, exigencies arise

36 Appeal of Converse and Company, 1 B. T. A. 742, Dec. No. 275, Docket No. 570; Appeal of Bernard Long, 1 B. T. A. 792, Dec. No. 292, Docket No. 408.

37 Appeal of Savoy Oil Company, 1 B. T. A. 230, Dec. No. 92, Docket No. 323.

38 See Rule 31 of "Rules of Practice," Appendix, p. 141.

39 See Appeal of Bonta Narragansett Realty Corporation, 1 B. T. A. 208, Dec. No. 85, Docket No. 34. Letters are subject to the same rule. The Commissioner may stipulate that the affiants, if present as witnesses, would testify to the matters set forth in their respective affidavits; see Appeal of Kinsman Transit Company, 1 B. T. A. 552, Dec. No. 202, Docket No. 67.

40 Revenue Act of 1924, Section 900 (i).

41 As to the right of a witness to refuse to testify, see Section 81. 42 See Rule 41 of "Rules of Practice," Appendix, p. 142.

which make it necessary to file an application to take deposition on the eve of the day set for hearing of the appeal, the particular case will be considered on its merits. Where one party allows his adversary to bring witnesses to Washington, or have them on the way, and then files application to take deposition and for a continuance, the application will customarily be denied.

Form of Application. When either party proposes to take a deposition, a verified application, with two conformed copies, should be made to 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 expected to testify, together with a statement of the reasons why it is desired to take the deposition and why the witness or witnesses 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 1924,43 before whom it is proposed to take the deposition.

43 In any case where an oath is required in connection with any returns or statements, made in accordance with the provisions of any section of the Revenue Act of 1924 or any regulations prescribed by the Commissioner and approved by the Secretary under the provisions of any section of such Act, such oath may be administered by any officer authorized to administer oaths for general purposes by the law of the United States or of any State, territory or possession of the United States, wherein such oath or affirmation is administered, or by any consular officer of the United States. Section 3165 of the Revised Statutes, as amended by Section 1317 of the Revenue Act of 1918 and reënacted without change by Section 1018 of the Revenue Act of 1924, authorizes collectors, deputy collectors, internal revenue agents, and internal revenue officers as

Depositions on Application. Upon receipt of the proper application by the Board, it will make an order, copy of which will be mailed or delivered to the taxpayer and to the Commissioner of Internal Revenue, or their counsel, wherein the Board will name the witness whose deposition is to be taken and specify the time when, 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.

Depositions by Stipulation. At any time after issue is joined the parties or their counsel may, by stipulation duly signed and filed with the Board, take the depositions of any witnesses whose testimony they deem material to the issues. In such cases the stipulation shall state the names and addresses of the witnesses; the time when, and the place where such depositions will be taken, and the name, address, and official title of the officer before whom it is proposed to take the depositions. In such cases no order to take depositions will be issued by the Board, but such

signed to duty under internal revenue agent to administer oaths in connection with the administration of the internal revenue laws. (Reg. 65, Art. 406.)

It has been held in a court decision interpreting the regulations under the 1918 Act that a Commissioner of deeds was authorized to take oaths under the Act. See United States v. Benowitz, 262 Fed. 223. The Treasury Department has ruled that the words "before an officer duly authorized to administer oaths either by the laws of the United States or by the laws of the State" as set out in T. D. 2951, amending Article 406 of Regulations 45, signify an officer duly authorized to administer oaths generally, rather than an officer authorized to administer oaths only under special circumstances. Postmasters were therefore ruled not to be authorized to verify returns. See O. D. 701, I. R. B. 43-20-1263, C. B. 3-228. This ruling has been in substance embodied in the 1924 law (see Section 1002 and regulations above quoted).

depositions should be taken and returned by the officer in accordance with the rules of the Board.

Depositions on Order of Board. The Board or any division thereof may at any time upon its own motion order the taking of the deposition of any witness whose testimony is deemed essential to the proper disposition of the appeal.

Section 74. Manner of Taking Depositions.** The person appointed to take testimony is required to be present during the taking of the deposition. Every person whose deposition is taken should be cautioned and sworn (or affirmed, if he so request) to testify the whole truth and nothing but the truth concerning the matter about which he shall testify, and shall be carefully examined. His testimony should be reduced to typewriting by the officer before whom the deposition is taken, or under his direction, after which the deposition should be read and subscribed by the witness and certified in usual form by the officer. After the deposition has been so subscribed and certified it should, together with two copies thereof made by such officer, or under his direction, be forwarded to the Board at its office in Washington, D. C. Upon receipt of the deposition and copies the Board files the deposition in the record in said proceeding and forwards one copy to the party at whose instance the deposition has been taken, or his counsel, and the other copy to the opposite party or his counsel.

Objections. Objections to questions or answers should not be entered of record, except objections to the form of the question or to the competency of the

44 See Rule 41 of "Rules of Practice," Appendix, p. 142.

witness, and no comment, explanation or argument should be recorded.

Examination of Witnesses Not Named in Order. When depositions are taken under the rules of the Board, if both parties are present or represented at the time and place specified for the taking of the depositions, either party may, after the examination of the witnesses produced under the order, 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 counsel there present unless such notice is waived.

Costs and Fees. Any cost or expense incurred in the taking of depositions under the rules of the Board must be paid by the party at whose request the same are taken. Persons designated to take depositions are entitled to the same fees as are paid for like services in the courts of the United States.45

Limitation on Time for Taking. No deposition shall be taken within ten days prior to the date of the hearing assigned by the Board unless under special circumstances and for good cause shown. But where a deposition is permitted to be taken within ten days of the time for hearing, it should not be understood that this operates to extend the original date set for hearing. If continuance is desired, a motion therefor must be made as in other cases, giving reasonable grounds therefor.

How Written. The depositions shall be typewritten upon one side of the paper only, which shall be the

45 See Section 81, "Fees of Witnesses."