of the State or Territory in which the court is held."

As to hearings held by the Board in Washington, D. C., the rule respecting competency of witnesses in the District of Columbia, binding on the Supreme Court of the District, will probably be applied."1 Section 1063 of the Code of Laws for the District of Columbia provides:

61

"Except as herein elsewhere provided no person shall be incompetent to testify in any civil action or proceeding by reason of his being a party thereto or interested in the result thereof; but, if otherwise competent to testify, he shall be competent to give evidence on his own behalf and competent and compellable to give evidence on behalf of any other party to such action or proceeding. "'82

9982

Immunity of Witnesses. Even though a witness. obeys a subpoena, he may, however, refuse to testify on the ground that the evidence might incriminate him.6 63 The Fifth Amendment to the Constitution providing for immunity necessarily qualifies the right

61 The question is complicated by the fact that the Board may send out divisions to the several States to hear cases. It would seem that where hearings are so held the rules applicable in the various States in which the hearings are held might properly be held to apply.

62 A person is not incompetent to testify because of conviction of crime, although it will affect the weight of his testimony (Section 106), or because of relationship of husband and wife (Section 1068). Testimony when competent may be given in evidence at a hearing on same subject matter between same parties when party now insane or otherwise incapable of testifying (Section 1065). Where one of the parties jointly interested has died, the other is not incompetent to testify (Section 1066). In general, objection to competency must be made before examination, if known, or, if not known, as soon as discovered; see Benson v. United States, 146 U. S. 332.

63 It is for the judge before whom the question arises to decide whether an answer to a question put may reasonably have a tendency to incriminate the witness or to furnish proof of a link in the chain of evidence necessary to convict him of a crime (Wycoff v. Wagner Typewriter Co., 99 Fed. 158). See also Mason, et al., v. U. S., 244 U, S. 362.

of the Board granted in the Act to compel testimony of witnesses. The Board or any party to the proceedings, however, may invoke the aid of a court to compel attendance of a witness under subpœna.64

Fees of Witnesses. Fees and mileage paid witnesses before the Board whether such witnesses are summoned or making depositions, are the same as are paid witnesses for like services in the courts of the United States.65

Section 848, Revised Statutes, providing generally for fees paid for services in the courts of the United States, is as follows:

"For each day's attendance in court, or before any officer pursuant to law, one dollar and fifty cents, and five cents a mile for going from his place of residence to the place of trial or hearing, and five cents a mile for returning. When a witness is subpoenaed in more than one cause between the same parties, at the same court, only one travel fee and one per diem compensation shall be allowed for attendance. Both shall be taxed in the case first disposed of, after which the per diem attendance fee alone shall be taxed in the other cases in the order in which they are disposed of.

"When a witness is detained in prison for want of security for his appearance he shall be entitled, in addition to his subsistence, to a compensation of one dollar a day."

However, Section 1114 of the "Code of Law for the District of Columbia" provides:

64 Where objection is made to obeying a subpoena on the grounds of incrimination of the witness, the mere statement that such would be the effect is no excuse; before he can claim this privilege he must obey the subpoena and be sworn as a witness. United States v. Kimbolt, 117 Fed. 156; Brown v. Walker, 161 U. S. 591.

65 Revenue Act of 1924, Section 900 (i) (3). See also Rule 43 of "Rules of Practice," Appendix, p. 145.

"For each day's attendance in court or before any officer pursuant to law, one dollar and twenty-five cents; and when a witness is subpœnaed in more than one cause between the same parties at the same term only one per diem compensation shall be allowed for attendance; and for traveling, at the rate of five cents per mile, coming and returning to and from the witness' place of abode, when summoned from without the District to testify in the courts of the District.

"No officer of the United States courts shall be entitled to witness fees for attending before a court or commissioner where he is officiating.' A departmental clerk, when subpoenaed to testify on behalf of the United States, has no right to witness fees, but his expenses are allowable. When subpœnaed by a private party he may demand and accept witness fees.66

67

The usual rules concerning the tender of witness fees and mileage apply to witnesses before the Board. Service and Proof. Service may be made by any citizen of the United States over the age of twentyone 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.

66 (1895) 21 Op. Atty.-Gen. 263.

67 Rule 40 of "Rules of Practice," Appendix, p. 141.

(g) Summary of Evidence to be Adduced on

Section 82. Introductory. It has been found that many tax practitioners, even though familiar with trial procedure in the courts, have assumed that the procedure before the Board of Tax Appeals would be largely similar to a conference in the Bureau of Internal Revenue and have prepared their cases accordingly. Such misapprehension has frequently resulted in unfavorable decisions, although the merits of the cases, had they been supported by competent evidence and submitted in accordance with the rules of the Board, would have justified decisions favorable to the taxpayers. The informality in proceedings before the Income Tax Unit, in the submission of data and arguments, has created in the minds of many counsel an expectation that similar informality would prevail before the Board of Tax Appeals, and, it is believed, this has seriously handicapped the Board in hearings before it. The Board, through its members, has suggested from time to time that although it will attempt in all cases to arrive at a fair and correct decision, it will be materially assisted in that purpose by an orderly presentation of the case along lines familiar to the courts.

It is perhaps natural that practitioners appearing before the Board for the first time should find it difficult to disassociate their experience before the Bureau of Internal Revenue. Under the procedure