there, letters, ex parte affidavits, unsworn statements, briefs of arguments, contentions, rulings, opinions, and the like, have frequently been admitted into the record indiscriminately. In a conference in the Income Tax Unit of the Bureau of Internal Revenue, counsel for a taxpayer deal with men who already know many of the facts of the case and who are aware in advance of the basis of the ruling under discussion. The Board of Tax Appeals, however, being a body of original jurisdiction, knows nothing about a case until it is presented before it. The members of the division, never knowing which cases will be assigned to them, do not attempt even to examine the pleadings in advance of the hearings. Consequently, if the opening statements of the counsel are inadequate or the evidence is developed in illogical order, considerable effort on the part of the Board must be devoted to finding out what the case is all about. It is, of course, evident that until that is accomplished, little effective thought can be given to the actual solution of the issues involved.

Bearing in mind that the members of the Board open the hearing with no knowledge of the nature of the case, the contentions of the parties, or the evidence to be adduced, counsel should marshal their facts both in opening statements and in production of evidence in such manner as to present a picture that the Board may readily grasp. The Board will then be in a position fully to comprehend the argument when it is made, and its effectiveness will be increased. Since the statute provides that the Board shall publish its findings of fact, and that they shall be prima facie

evidence in subsequent proceedings in the courts, it it obvious that the record upon which such findings of fact are predicated should be carefully and legally constructed. Definiteness of issue, clarity of presentation, and accurate statements of facts are necessary elements in the proper decision of cases.

Section 83. Order of Proceedings at Hearing. In the logical presentation of an appeal at a hearing there are three main stages: first, the opening statement; second, the proof, i. e., the establishment of facts relied upon in support of the appeal; and third, the argument. The order of proceedings is discussed. in sequence in the following paragraphs:

As in the courts, a moving party has the burden of going forward and is entitled to the last word. If an appeal is being heard upon the merits, the taxpayer is the moving party for he is seeking a reversal or modification of the determination made by the Commissioner. Where the Commissioner moves to dismiss a petition, e. g., on the ground of lack of jurisdiction, or because he claims that upon its face it is insufficient to constitute a basis for the relief sought, he is the moving party. Where the defendant, by the nature and character of his pleading, absolutely admits the facts alleged by the petitioner, thereby absolving him from the necessity of making any proof thereof in order to succeed, the burden of the argument rests with the defendant, and he is, therefore, entitled to open and close. Where there are several issues, if the petitioner is called on to establish the facts with respect to a single one, he retains the right to open and close.

Section 84. Calling of the Case. The first step in a hearing is the calling of the case by the presiding member of the division sitting. He announces the name of the taxpayer and the docket number of the appeal. Appearances for the respective parties are then noted, counsel stating their names for the purposes of the record. Even when personally acquainted with the members of the Board, counsel should do this for the convenience of the clerk and reporter.

Section 85. Motions. After the calling of the case the next step is the making of any motion which should be considered as a preliminary to the hearing. The moving party is first heard, then the opposite party. If further discussion is deemed necessary by the Board, the presiding member so indicates.

Section 86. Opening for Taxpayer. Following the calling of the case and the hearing of motions, if any, the opening statement is made by taxpayer's counsel.1 The object of an opening is to state briefly the nature of the appeal, the substance of the pleadings, the points in issue, the facts, and the substance of the evidence counsel expects to introduce. In his opening statement counsel should set forth in proper order the following matters:

(a) The Nature of the Appeal, i. e., whether the appeal is from a determination of income, profits, estate, or gift taxes; in case of income or profits taxes the taxable year or years involved; in case of estate or gift taxes the date of death or of making the gift;

1 The rule is otherwise in case of a hearing upon a motion by the Commissioner; such hearings will be treated subsequently. See Sec. 93, p. 127.

in all cases the amount of the deficiency, and a reference to the Revenue Act under which the determination was made. For example:

"This is an appeal from a determination of a deficiency in income and profits taxes for the calendar years 1919 and 1920 in the sum of $5,000, under the Revenue Act of 1918.'

If the entire amount of the deficiency is not in controversy, the amount in dispute should be stated. (b) The Nature of the Adjustment Underlying the Determination, e. g.:

"Arising from the disallowance by the Commissioner of a deduction claimed by the taxpayer for depreciation of machinery."

(c) The History of the Transaction Involved. This involves the necessary preliminaries to a full comprehension on the part of the Board of the situation, as well as an exposition of the transaction itself. Chronological order is best adapted to this purpose. The nature of the taxpayer (individual or corporate, with place of residence or state of domicile, place of business), nature of business, history (where pertinent) prior to commencement of transaction involved, nature of the transaction, and details of the transaction in chronological order, should be stated.2

(d) Treatment of the Transaction by the Taxpayer in His Returns. There should be a brief statement, at this point, of what the taxpayer's returns showed with respect to the transaction. Statement of the reasons therefor should be deferred until further on in the opening statement.2

2 History of the transactions should not be confused with history of the case in the Bureau of Internal Revenue. The Board is not usually interested in the history of the case from the first examination of the Revenue Agent down through its ramifications and vicissitudes in the Bureau. See Paragraph (e).

(e) Treatment of the Transaction by the Commissioner. The prior proceedings in the Bureau of Internal Revenue, are usually unimportant, but the Commissioner's final action and the basis for it should be stated, both facts and law being covered. If the Commissioner decided the facts to be otherwise than as claimed by the taxpayer, his findings, with the basis for them if known, and his conclusions from the facts so found, should be stated. It is not necessary to go into much detail as to the Commissioner's reasoning (that is a matter for his counsel to handle) but his ultimate conclusion should be mentioned.

(f) The Taxpayer's Theory. Briefly (saving detailed argument until after the evidence is in) the taxpayer's conclusions of fact and law should be set forth.

(g) Summary of Evidence to be Adduced on Behalf of the Taxpayer. It is not necessary to repeat the nature and history of the transaction previously given, but the Board should be advised briefly as to what is admitted by the pleadings and by stipulations filed, and what the various witnesses and exhibits are expected to show, to the end that the members may be aware of the purposes for which the various items of evidence are to be introduced and may weigh them accordingly. Within reasonable limits the extent of the opening statement is left to the discretion of counsel.

Section 87. Opening for Commissioner. Following the opening for the taxpayer, and before any evidence is introduced, the representative of the Com