because the board has failed to consider evidence not adduced before it. While an appellate court has the right and duty, if an error of law has been made, to remand a case to the board for subsequent proceedings in accordance with law, the existing provisions of law clearly contemplate judicial, not administrative, procedure on the part of the board, and the committee can see no need of further legislation on this subject. It is not the duty of the board to make investigations of tax cases but to decide the case on the basis of evidence properly placed before it by the commissioner and the taxpayer. [Italics supplied.]

Whether the Congress, by its enactments, succeeded in endowing this Board with jurisdiction and powers of the nature it intended may be adjudged from the judicial characterization thereof. In Blair v. Oesterlein Machine Co., 275 U. S. 220, the Supreme Court said:

An examination of the sections creating the Board and investing it with power can leave no doubt that they were intended to confer upon it appellate powers which are judicial in character.

Later, in Williamsport Wire Rope Co. v. United States, 277 U. S. 551, the court said that under the Revenue Act of 1924 the power of the Board in reviewing determinations of the Commissioner as to the applicability of the special assessment provisions of the statute was discretionary and executive in character. Still later the court, by Mr. Chief Justice Taft, said, in Old Colony Trust Co. v. Commissioner, 279 U. S. 716:

The Board is not a court. It is an executive or administrative Board, upon the decision of which the parties are given opportunity to base a petition for review to the courts after the administrative inquiry of the Board has been had and decided.

It held further that a decision of the Board may be reviewed by the circuit courts of appeals as a controversy cognizable by those courts under the judicial article of the Constitution.

See also Goldsmith v. U. S. Board of Tax Appeals, 270 U. S. 117; Phillips v. Commissioner, 283 U. S. 589.

The pronouncements of the Supreme Court upon the subject have been the subject of reiteration and interpretation in numerous decisions of the various circuit courts of appeal, of which one of the more recent, rendered after an exhaustive consideration and accompanied by a vigorous dissenting opinion, is Commissioner v. Liberty Bank & Trust Co., 59 Fed. (2d) 320. It was there said:

While the Board is not a court, it exercises appellate powers judicial in character. Its decision presents a case or controversy between the taxpayer and the Government so as to authorize review by the court upon the Commissioner's petition. * * * The Board exercises functions similar to those exercised by a trial court in a law case without a jury.

The character of the Board and the nature of its powers being thus judicially defined, the inquiry follows: "What authority has the

Board which would permit it to consider and act upon motions of the kind here under discussion?" It has been urged that, since the Board is a creature of statute, it has neither implied nor inherent powers, and, unlike a court as to which every intendment of law is in favor of the power to do all things necessary toward final judgment in a proceeding, its powers exist, if at all, exclusively in the terms of the statute and, if statutory authority be lacking, it must be inferred that the intention of the Congress was to deny the power. These, and similar arguments, seem conclusively answered by the decision of the Supreme Court in Goldsmith v. Board, supra, holding that the Board, despite the lack of express statutory authority, has the power to make rules as to persons who may practice before it and reading, inter alia:

Our view * is that so necessary is the power and so usual is it that the general words by which the Board is vested with the authority to prescribe the procedure in accordance with which its business shall be conducted include as part of the procedure rules of practice for the admission of attorneys.

The primary business of the Board is to hear and decide controversies arising between the Commissioner and the taxpayer-to determine the amount of deficiency owing or overpayment made by the taxpayer. Surely, considering and acting upon motions for new trial, reconsideration, and the like, are as necessary a part of the procedure according to which that business shall be conducted as the prescribing of rules respecting the persons who shall be permitted to appear to present the controversy. Certainly, the power for the consideration of and action upon such matters is necessary, and is usual to a tribunal having similar duties and, in our opinion, it requires no stretch of implication to imbue us with that authority. In many instances beyond those cases already referred to wherein we have taken cognizance of motions of this nature, we have, without reproach from higher authority, considered and acted upon presented problems, while lacking express statutory authority so to do, in the belief that our duty of determining a petitioner's tax liability so required. We have considered and determined the constitutionality of a portion of a statute serving as a basis for a determination of deficiency. Henry Cappellini, 14 B. T. A. 1269; Independent Life Ins. Co. of America, 17 B. T. A. 757; American Security & Trust Co., 24 B. T. A 334; Lord Forres, 25 B. T. A. 154; Northern Trust Co., Executor, 9 B. T. A. 96; affd., 41 Fed. (2d) 732; 283 U. S. 782.

We have reviewed the action of the Commissioner in special assessment cases, Oesterlein Machine Co., 1 B. T. A. 159; affd., 275 U. S.

• Green v. McLaughlin, 55 Fed. (2d) 423; American Woolen Co. v. White, 56 Fed. (2d) 716: Warren Mfg. Co. v. Tait, 60 Fed. (2d) 982; Peerless Woolen Mills, 18 B. T. A. 1119.

220. We have ordered the substitution of parties petitioner, Wm. 1. Paulson, 10 B. T. A. 732; George E. Hall, Administrator, 10 B. T. A. 847; Charles A. Rusk et al., Executors, 20 B. T. A. 138; affd., 53 Fed. (2d) 428. We have refused to be bound by stipulations of law, Ohio Clover Leaf Dairy Co., 8 B. T. A. 1249; affd., 34 Fed. (2d) 1022; certiorari denied, 280 U. S. 588; Walter H. Lewis, 11 B. T. A. 334; affd., 47 Fed. (2d) 32; or by stipulations of fact if manifestly incorrect, William Ernest Seatree, 25 B. T. A. 396; and have disregarded a confession of error by the Commissioner when we found it to be contrary to statute, Lucius H. Littauer, 25 B. T. A. 21. At times, for good cause shown, we have vacated a decision, in some instances over objection of counsel and, again, at times, we have refused to do so. In view of these practices it is perhaps significant that the Revenue Act of 1926, while expressly prescribing for our use in the admission of evidence the rules obtaining in courts of equity of the District of Columbia, left the rules of practice and procedure governing the conduct of proceedings before us to our discretion and that subsequent acts likewise left this power unimpaired. Moreover, the matter of a new trial of a proceeding before this Board was directly dealt with in Griffith v. Commissioner, 50 Fed. (2d) 782, wherein the court held that a motion therefor stops the running of the time allowed by statute for appeal from our decision, and in Bankers Pocahontas Coal Co. v. Commissioner, 287 U. S. 308, wherein the court held that our denial of a motion for rehearing was not an abuse of our discretion. See also Lexington Ice & Coal Co., supra; United States ex rel Dascomb v. Board, 16 Fed. (2d) 337. We conclude, therefore, that, because it is an essential requirement of the procedure necessary to the fulfillment of our duty, to the conduct of our business, we have the authority to include as a part of the procedure in cases before us, which, by statute is placed within our discretion, such consideration of, and action upon motions as may be necessary to a just determination of the controversy.10 It was for that reason that, after consideration of the motion by the full Board, a new trial was granted in the case at bar.

But it is further urged that we lack authority to grant a new trial in any proceeding before us wherein we have entered our decision, for the reason that it has then passed beyond our control and we become functus officio and without power to entertain further motions respecting the proceeding. The rule that, after the term has ended, all final judgments pass beyond the control of the rendering court, although under its control during the term, is well established

10 See Cohan v. Commissioner, 39 Fed. (2d) 540; Schultz Bread Co., 10 B. T. A. 268: United States v. Board, 37 Fed. (2d) 442; certiorari denied, 281 U. S. 731; Underwood v. Commissioner, 56 Fed. (2d) 67,

and needs no extended citation. New England Furniture & Carpet Co. v. Willouts, 55 Fed. (2d) 983. Its purpose is to promote a termination of controversy; to fix a time when the trial court may be done with the case. This Board has no terms, but the time when its decisions become final is fixed by statute. (Sec. 1005, Revenue

Act of 1926) Until such time arrives it seems clear that we retain control of our decisions and may, for good cause, vacate or amend them. Cf. United States ex rel James McCandless v. Board, 26 Fed. (2d) 1003. Whether, for the purpose of preventing an obvious miscarriage of justice occasioned by fraud or mistake, we may vacate a decision after the lapse of the statutory period as if upon a writ of coram nobis, we need not here decide."

Considering petitioner's contention, so strenuously urged, that we must decide this case upon the record made at the first trial, it is apparent that petitioner confuses a matter of procedure with one of evidence. The question of whether a new trial should be granted is one of procedure, and, under the statute, our practice and procedure is to be fixed by the Board itself. The matter thus being within our sound discretion, it would seem that the new trial may be limited in scope, or may be a hearing de novo, as we may direct. Bankers Pocahontas Coal Co. v. Burnet, supra; Great Northern Ry. Co., 10 B. T. A. 1347; Frank C. Hughson, 10 B. T. A. 242; O'Meara v. Commissioner, 34 Fed. (2d) 390; Board, etc. v. United States ex rel Schultz Bread Co., 37 Fed. (2d) 442; and it would seem that our determination of the question, unless arbitrary, would not be subject to review, Fitzgerald v. Dodson, 58 D. C. App. 150; 26 Fed. (2d) 522; cf. Johnson v. Harmon, 94 U. S. 371; Reamer v. Bernheim, 132 U. S. 103; Cochran v. Schriber, 107 Fed. 371; the case then standing as though no previous trial had taken place, Home Life Ins. Co. v. Dunn, 19 Wall. 214; United States v. Ayers, 9 Wall. 609; Stern v.

"See La Floridienne J. Buttgenbach & Co. v. Commissioner, 63 Fed, (2d) 630, wherein it was held that a decision of the Board, entered in accordance with a stipulation by the parties, may be vacated at the instance of the parties to the stipulation for good cause shown. That the stipulation of deficiency was entered into through mutual mistake, that the taxpayer did not owe the tax, and that no hearing was had before the Board resulting in a determination of the case upon its merits, was not disputed. The parties joined in a motion requesting the Board to vacate its order of redetermination entered more than four years previously, and to enter an order declaring an overpayment in an agreed amount. This, the Board refused to do.

The court held that, although the passing of time had foreclosed the right of either party to appeal from the Board's decision, the Board, in its discretion, might deal further with the proceeding and that extraordinary relief against its decision might be had. It said, by Sibley, J:

"We shall not attempt to formulate any rule as to the control the Board of Tax Appeals has over its own judgments. Whether the Board be treated as a court

or a departmental agency with quasi-judicial functions, we are of opinion that it may in its discretion, vacate such an order as this is, reinstating the matter for hearing before it on its merits or accepting a new stipulation touching the liability."

Wabash R. R. Co., 101 N. Y. S. 181; Henderson v. Carbondale Coal & Coke Co., 140 U. S. 25.

There can be no doubt but that in the instant case the Board intended a trial de novo. Respondent's motion, which was granted, requested such a hearing; the subsequent motion of petitioner to submit the case upon the old record made an issue of the point, and the denial of that motion emphasized and clarified, if clarification was necessary, the Board's intention as to the nature of the further proceedings. The Member, sitting as a Division of the Board at the new trial, so interpreted the order and conducted the proceedings. Any other construction of the order would have nullified it, for the new trial would serve no purpose were petitioner permitted to put in evidence the record made at the former trial, avoiding the production of his witnesses. Nor was the new trial lightly or hastily ordered. We recognized that a new trial would entail hardship to petitioner and to respondent as well, but we found ample justification for ordering it. This case involved a serious issue of good faith and character. Fraud was charged and suspicion raised concerning the honesty of the conduct of petitioner's officers toward the Government. Moreover, an issue respecting valuation of property was raised, demanding proof, perhaps through testimony of opinion. Such matters can not safely be determined solely from a transcript; personal impressions of the witnesses on the stand are of almost essential assistance in weighing their testimony. Here the Member who saw and heard those witnesses and was to adjudge their testimony was dead. It seemed unwise, if not unfair, to attempt thereafter to determine those issues without the advantages offered by the personal appearance of the witnesses upon whose testimony the decision had to be based. Then, too, it was asserted that, due to the presiding Member's disability during trial, the record was too confused to serve as a basis for decision. We examined, to some extent, the record made at the former trial and discovered difficulties, beyond mere technical considerations of rulings upon evidence, which indicated that the record might be unreliable, and this was another factor tending to persuade us that a new trial should be granted. Of course, a new trial imposes a hardship on the parties generally and upon one of them especially. That is regrettable but not at all unusual. Frequently it happens in criminal as well as civil cases that a new trial must be had, for instance, where a jury is unable to agree upon a verdict, or is tampered with, or where a juror becomes ill, or dies, or where, for one reason or another, a mistrial is declared. Here there was no jury, but the Member whose duty it was to weigh the imponderable elements of the evidence, as would a jury, was removed by death.