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more of the fiduciaries; it shall be veri- | of a variance between the name set forth fied by one of the fiduciaries and the in the disallowance notice and the corverification shall contain a statement rect name, a statement of the reasons that the fiduciary signing or verifying for such variance shall be set forth in has authority to act for the petitioner. the petition.*† The name and mailing address of the petitioner or of counsel shall be typed or printed immediately following the signature.

(1) A verification by the petitioner, or, if the petitioner is outside the United States, verification may be by a duly appointed attorney in fact, who shall attach to the petition a true copy of the power of attorney under which he acts and who shall state in his verification that he acts pursuant to such power, that such power has not been revoked, that petitioner is outside the United States, and the sources of his information and the grounds of his belief of the facts alleged in the petition. As used herein the term "United States" includes only the States and the District of Co

lumbia.

The signature and the verification to the petition shall be considered the certificate of those performing these acts that there is good ground for the petition, and that the proceeding is not frivolous.

§ 601.8 Docket. Upon receipt of the petition the proceeding will be docketed and assigned a number and the parties notified thereof. This number shall be placed by the parties on all papers thereafter filed in the proceeding.*+

§ 601.9 Service of papers-(a) Upon the Commissioner. Except when otherwise provided in this part, a copy of the petition and every other paper filed by a petitioner in a proceeding will be promptly served by the Board upon the Commissioner or a person designated by

him.

(b) Upon the petitioner. Except when otherwise provided in this part, a copy of the answer and of every other paper filed by the Commissioner in a proceeding will be promptly served by the Board, by registered mail, upon the petitioner's counsel of record. The date of mailing shall be deemed to be the date of service. If at any time there are two or more counsel of record for a petitioner, service will be made upon the one whose appearance was first entered of record, unless he has otherwise requested by writing filed with the Board, in which event service will be upon such other counsel of record as may be designated by him. However, service upon any counsel of record shall be deemed service upon the party. If there is no

(j) There shall be appended to and made a part of the petition: (1) a copy of the notice of disallowance, in whole or in part, of the claim for refund, together with statements accompanying the same, and (2) a copy of such claim for refund.*+ CROSS REFERENCE: For Form No. 1, Petition, counsel of record, service will be made see § 611.1. upon the petitioner.

§ 601.6 Fee for filing petition. A fee of $10, which shall accompany the petition, is hereby imposed for the filing of an original petition.*†

§ 601.7 Designation of parties. The proceeding shall be brought by and in the name of the person whose claim for refund was disallowed, in whole or in part, by the Commissioner, or by and in the full descriptive name of the fiduciary legally entitled to institute a proceeding on behalf of such person. If an individual, the full given name and surname shall be set forth in the caption. If a fiduciary, both the names of the fiduciary and of the estate, trust, or other person for whom he acts shall be set forth. In the event

(c) Service of Board papers. Service of all papers issued by the Board shall be made upon the respective parties by the Board by registered mail. The date of mailing shall be deemed to be the date of service.*†

§ 601.10 Answer. After service upon him of a copy of the petition, the Commissioner shall have 60 days within which to file an answer or 45 days within which to move in respect of the petition.*†

§ 601.11 Joinder of issue. A proceeding shall be deemed at issue upon the filing of the answer.*†

§ 601.12 Motions; general. Motions must be timely.

The filling of a motion shall not constitute cause for postponement of a hearing.

and witnesses, will be considered in passing upon such application.*†

§ 601.16 Dismissal. A proceeding may

In the discretion of the Board, motions be dismissed for cause upon motion of may be set for argument.

If a motion, other than one relating to the receipt of evidence during a hearing, is made orally at the hearing, the presiding officer may direct that it be reduced to writing and, unless he directs otherwise, it shall be filed with the Board at Washington, D. C.*†

§ 601.13. Amended and supplemental pleadings. The petitioner may, as of course, amend his petition at any time before answer is filed. After answer is filed, a petition may be amended only by consent of the Commissioner, or on leave of the Board.

Upon motion made, the presiding officer may, in his discretion, at any time before the conclusion of a hearing, permit a party to a proceeding to amend the pleadings to conform to the proof.

All motions to amend, made prior to the hearing, must be accompanied by the proposed amendments or amended pleading. When a motion to amend is granted at the hearing, the amendment or amended pleading shall be filed at such place, within such time, and upon such conditions as may be fixed by the presid

ing officer.*†

§ 601.14 Pleadings; general. A further and better statement of the nature of the claim or defense, or of any matter stated in any pleading, may be ordered in any proceeding.

Each and every material allegation of fact set forth in the petition and not denied in the answer shall be deemed to be admitted.

Any new or affirmative matter contained in the answer shall be deemed to be denied.*†

§ 601.15 Extensions of time. Continuances, extensions of time (except for the filing of the petition), and adjournments may be ordered by the Board on its own motion or granted in its discretion on timely motion of either party filed in writing and showing good and sufficient cause therefor. The diligence of the applicant in notifying the other party of his intention so to apply, and the convenience of the parties, counsel,

either party or upon the Board's motion. Failure to comply with § 601.4, § 601.5, § 601.6, or § 601.7 may be ground for the dismissal of a proceeding.*†

If

§ 601.17 Substitution or withdrawal of counsel; notice of appearance. counsel of record dies, notice thereof shall be given promptly by the petitioner.

No withdrawal of counsel of record in any proceeding shall be permitted unless he gives prompt and timely notice of such withdrawal to the Board and to his client: Provided, That in any event, the Board may, in its discretion, withhold permission.

If the petition is not subscribed by counsel, or counsel has withdrawn, counsel subsequently appearing for the petitioner shall immediately file a notice of appearance, which shall include statements of his admission to practice before the Board and of his mailing address.

Notice of a change in the mailing address of counsel or petitioner shall be promptly filed with the Board in each pending proceeding affected thereby.*†

the event of the death of a petitioner or § 601.18 Substitution of parties. In for other proper cause, the Board may order a substitution of parties. In the event of a mistake in the name or title of a party the Board may direct such correction as may be appropriate.

A motion for substitution shall in a proper case be accompanied by a certificate of the court or official having custody of the record showing the interest of the party substituted. A motion to amend so as to show a change in the name of a corporation or other party petitioner shall be accompanied by a copy of the certificate, decree, or other document by which such change was effected and certified by the official having custody of such document, unless the parties stipulate as to the change.*†

§ 601.19. Notice of hearing. The Board will, within 3 months after the date of filing the petition, notify the parties by registered mail of the place and the date on which the proceeding will be called for hearing, which date will be:

(a) not more than 2 years from the date | support of the issues. Statements in the of the filing of the petition, and (b) not petition, affidavits, briefs and depositions less than 15 days from the date of the notice of hearing.*†

§ 601.20 Burden of proof. The burden of proof shall be upon the petitioner, except that in respect of any new matter pleaded in the answer, it shall be upon the respondent.*†

§ 601.21 Evidence. The rules of evidence applicable in courts of equity of the District of Columbia shall govern the admission or exclusion of evidence before the presiding officer.*+

§ 601.22 Documentary evidence. (a) When a book, record, paper, or other document has been received in evidence, a true copy thereof or a true copy of so much thereof as may be material and relevant may, in the discretion of the presiding officer, be substituted for the original.

(b) After the decision of the Board in any proceeding has become final the Board may, upon motion of either party, permit the withdrawal by the party entitled thereto of originals of books, documents, and records, and of models, diagrams, and other exhibits, introduced in evidence before the presiding officer; or the Board may, on its own motion, make such other disposition thereof as it deems advisable.*†

do not constitute evidence unless offered at a hearing and received in evidence. Failure to adduce evidence in the petition and denied by the Commissupport of the material facts alleged in sioner in his answer will be ground for

dismissal.

Among the types of cases which may be submitted under this section are cases (a) in which the facts have been agreed upon, or (b) in which no question of fact is raised by the pleadings.*†

§ 601.25 Oral arguments and briefs(a) Hearing on the merits. The presiding officer conducting a hearing may, in his discretion, afford the parties an opportunity for oral argument before him and for the submission to him of proposed findings of fact and decision and of written briefs. The presiding officer shall, upon completing the taking of testimony, set the time within which such oral argument and submission must be made, but such time shall not exceed 45 days. The presiding officer shall make provision for the exchange of briefs by the parties, but answering briefs shall not be filed unless the presiding officer shall so direct. An original and four copies of each of these briefs shall be filed with the Board at Washington, D. C.

All such briefs shall contain on their

§ 601.23 Stipulations. The parties may, by stipulation in writing, filed in front fly-leaves a table of contents, with duplicate with the Board at Washing-page references, supplemented by a list ton, D. C., or presented at a hearing, of all authorities cited, alphabetically aragree upon any facts involved in the ranged, together with references to proceeding. Stipulations filed need not pages. The form of all briefs shall be as follows: be formally offered to be considered in evidence.**

§ 601.24 Submission without personal appearance. A proceeding or motion in which either party is 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.

The provisions of this section relative to submission without personal appearance shall not relieve the party upon whom rests the burden of proof from adducing at the hearing proper evidence in

(1) A statement of the article or commodity to which the tax applied and the period or periods during which the tax was in effect.

was

(2) A statement showing how the proceeding comes before the Board, including the date upon which the Commissioner's notice of disallowance mailed to the petitioner, the date upon which the petition for a hearing was filed with the Board, the place of hearing, and the date or dates of the hearing.

(3) A concise statement of the facts upon which the party relies, with references to the pages of the transcript or to the exhibits relied upon in support of each statement of fact.

(4) A concise statement of the points | less filed within 45 days after the mailupon which the party relies. ing of the Board's findings of fact and decision.

(5) The argument.

The Board shall send by registered mail to each party to the proceeding a copy of the recommended findings of fact and decision of the presiding officer, and within 30 days after the mailing of such recommended findings of fact and decision, either party may submit to the Board a brief with respect to such recommendations. Such briefs shall conform to the requirements in respect to briefs to be filed with the presiding officer. If either party disagrees with the presiding officer's recommendation, such party must state in the appropriate part of his brief each correction which he considers to be necessary in such recommendation, with references to the pages of the transcript or to the exhibits relied upon in support of each proposed correction.

(b) On motions. Briefs with respect to motions may be filed pursuant to notice given by the Board. The Board may, in its discretion, permit the parties to file reply briefs. Briefs shall conform to the requirements in respect to briefs upon hearings on the merits.

The Board may, in its discretion, permit oral argument provided request is made therefor. Oral argument, if permitted, will be held in Washington, D. C., unless good cause is shown for holding it elsewhere.**

§ 601.26 Transcripts of proceedings. Hearings shall be stenographically reported and a transcript thereof shall be made if, in the opinion of the presiding officer holding the hearing, a permanent record of the hearing is deemed necessary. Transcripts shall be supplied to the parties and to the public by the official reporter at such rates as may be fixed by contract between the Board and the reporter.*†

(b) A motion for rehearing shall be based upon one or more of the following grounds: (1) error of fact, (2) error of law, and (3) additional evidence.

(c) A motion based upon error of fact shall specify in detail the fact or facts which are regarded as erroneously found or erroneously omitted to be found by the Board, with complete references to the evidence which is relied upon to support the motion.

(d) A motion founded upon error of law shall specify in like detail the points upon which the Board is alleged to have erred, with references to all authorities relied upon to support the motion.

(e) A motion upon the ground of additional evidence shall show to the satisfaction of the Board that such additional evidence is material and that there were reasonable grounds for failure to adduce such evidence in the hearing before the presiding officer; and such motion shall be accompanied by the affidavit of the party or the counsel of record, setting forth—

(1) The facts in detail which the party expects to be able to prove, and whether the same are to be proved by witnesses or by documentary evidence.

(2) The name, occupation, and residence of each and every witness whom it is proposed to call to prove said facts.

(3) The reasons for the failure of the

party or his counsel of record to adduce such evidence at the hearing before the presiding officer.

(f) A motion for rehearing may also be accompanied by the brief of the moving party.*†

§ 601.28 Subpenas-(a) Application. The party desiring a subpena must make a timely application therefor, in writing. The application shall state the name and address of each witness required, the time and place at which, and the person before whom, he is to appear, and whether he may designate some one to appear in his place. An original and two conformed copies shall be filed.

§ 601.27 Motions for rehearing. (a) If either party desires to question before the Board the correctness or sufficiency of its findings of fact or decision, the procedure shall be to file a motion, which shall be known as a motion for rehearing. The motion shall contain (b) For production of documents. If grounds relied upon for each objection. evidence other than oral testimony is Such motion will not be entertained un- | required, such as documents or written

all

*For statutory and source citations, see note to § 601.1.

Page 2197

data, the application shall set forth the specific matter to be produced and sufficient facts to indicate that such matter is reasonably necessary to establish the cause of action or defense of the applicant.

(c) Service and proof. The Board will not serve subpenas, but will leave service to be procured by the party making the application. Service may be made by any citizen of the United States over the age of 21 years and competent to be a witness, and not a party to or in any way interested in the proceeding. Proof of service may be made by affidavit.*† CROSS REFERENCES: For Form No. 2, Application for subpena, see § 611.2. For Form No. 3. Application for subpena duces tecum, see § 611.3.

§ 601.29 Depositions. Depositions may be taken in accordance with the following rules:

date of hearing: Provided further, That under special circumstances, and for good cause shown, the Board may otherwise order.

(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. 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.

In

(d) Order for. Upon receipt of such application, the Board will serve a copy thereof on the opposite party, and allow a reasonable time for objection thereto. Thereafter, the Board will, in its dis

(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 set-cretion, make an order, copy of which will ting 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 deposition 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 before whom it is proposed that the deposition shall be taken.

(b) Limitation on time for application to take. Applications to take depositions must be filed at least 30 days prior to the date set for the hearing of the proceeding, and such depositions must be completed and filed with the Board at least 10 days prior to the hearing: Provided, Such applications will not be regarded as sufficient ground for the granting of a continuance from the date or place of the hearing theretofore set, unless the proceeding shall have been at issue less than 60 days and the motion for continuance shall have been filed not less than 20 days prior to said

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. The applicant shall thereupon make all necessary arrangements for the taking of the deposition and shall furnish the officer before whom it is to be taken with a copy of the order above mentioned.*†

CROSS REFERENCE: For Form No. 4, Application for order to take depositions, see § 611.4.

§ 601.30 General provisions as to depositions-(a) 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

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