court or Court of Claims,25 the sole remedy being by review in an appellate court.26 This does not deprive the taxpayer of a right to test his liability, in the first instance, in a district court or the Court of Claims, if he elects to allow the tax to be assessed, and to pay it without filing a petition with the Board. But if he does file a petition with the Board, he loses the right to sue in a court of original jurisdiction,27 and may only prosecute his proceeding in the Board to a decision and review that decision in the appellate courts.

§ 288. Nature of Reviewable Decisions. In various parts of sections 274, 279, 283, 284, 308, 312, 317, and 318 of the Revenue Act of 1926, reference is made to "the decision of the Board." It is apparent that this means a definitive determination by the Board of the amount of a deficiency, or a dismissal of a proceeding before it, and not an interlocutory decision under Rule 50 of the Board's rules, or a decision on a motion,28 not terminating the controversy before the Board. Section 1000 (where it amends Section 906 (d) of the 1924 Act) provides:

"A decision of the Board shall be held to be rendered upon the date that an order specifying the amount of the deficiency is entered in the records of the Board. If the Board dismisses a proceeding and is unable from the pleadings to determine the amount of the deficiency determined by the Commissioner, an order to that effect shall be entered in the records of the Board, and the decision of the Board shall be held to be rendered upon the date of such entry." Such decisions only are reviewable under sections 10011005, for the phrase "decision of the Board" in those sections must be held to mean the same as that phrase

25 As to taxpayer, Revenue Act of 1926, §§ 284 (d), 319 (a). As to Commissioner, § 283 (a), (f), referring back to § 274 (b); § 318 (a), (d), referring back to § 308 (b).

86 Revenue Act of 1926, § 1001 (a).

38

See footnote 25 above.

e. g.

Motions to amend pleadings with respect to depositions, or calendar practice, etc.

when used in the prior sections referred to. The limitation of review to such decisions as terminate the proceeding as far as the Board is concerned is consistent with the statutory policy which limits review of district court decisions to final decisions (except in certain injunction and receivership cases having no parallel in Board procedure). Federal procedure does not, as does the procedure in some state courts, contemplate appellate review of interlocutory judgments or orders (except in injunction and receivership cases) of courts of original jurisdiction. Interlocutory orders concerning matters that are not wholly discretionary (or where abuse of discretion is asserted), can only be reviewed in conjunction with a review of the definitive decision.

It is a general principle of appellate procedure that a decision made on consent is not appealable, but this only means that where a party consents to a decision establishing the law or the facts of the case, he cannot appeal. If the Board makes an interlocutory decision, finding the facts and stating the law, and indicates that a definitive decision in accordance with such facts and law will be made (e. g., under the Board's Rule 50), the parties may stipulate the amount of the deficiency or refund determinable under such interlocutory decision and that a definitive decision may be entered accordingly, without waiving the right to review the findings of fact or conclusions of law upon which the stipulation was based.30

§ 289. Jurisdiction to Review. By Section 1003 (a) of the Revenue Act of 1926, exclusive jurisdiction to review decisions of the Board of Tax Appeals is vested in the circuit courts of appeals and the Court of Appeals of the District of Columbia (subject to further review by the Supreme Court by certiorari or on questions submitted under Section 139 of the Judicial Code).

Such courts have power to affirm, or, if the decision of the Board is not in accordance with law, to modify or

29 See 8 316, p. 454, and J. C., § 128.

30 Pacific R. Co. v. Ketchum, 101 U. S. 289, 296, 25 L. Ed. 932.

reverse that decision, with or without remanding the case for rehearing, as justice may require.31

Since the decision of the Board, being exclusively the determination of the amount of a tax or a penalty, is in its nature equivalent to a judgment at law rather than a decree in equity, and is based strictly upon legal rather than equitable principles, in spite of the fact that the procedure in the Board resembles that of a court of equity and equity rules of evidence are applied, it would seem that the jurisdiction of the appellate courts is restricted to questions of law. This thought is borne out by the provision that in the absence of special rules the rules relating to writs of error shall govern, and by the provision that the court may modify or reverse "if the decision of the Board is not in accordance with law''33 (as distinguished from decisions not in accordance with the evidence). And the special rules adopted by the appellate courts indicate a similar intent.

So it is safe to say that the appellate courts will review only questions of law33 involved in Board decisions, that is to say questions involving the correct interpretation of the law or its application to the facts as found; questions as to whether there was any competent evidence to support a finding of fact; and questions arising out of the admission or exclusion of evidence. Where there is competent evidence on both sides of an issue of fact, the weight of the evidence is a matter wholly within the jurisdiction of the Board, and not open to review. Where the Board has misconstrued the law or misapplied it to facts as found, or where it has found a fact of which there is no competent evidence in the record, the appellate court may (if the error be prejudicial) 34 modify or reverse without remanding, or it may remand for a new decision. But where the appellate court finds that the

31 Revenue Act of 1926, § 1003 (b). 32 Revenue Act of 1926, § 1001 (b). 33 Revenue Act of 1926, § 1003 (b). 33a cf. § 316, p. 455.

34 An error, not prejudicial, is not ground for reversal.

Board committed prejudicial error in the admission or rejection of evidence, it will remand for a new trial.

§ 290. Venue. The venue of a review is controlled by Section 1002 of the Revenue Act of 1926, which provides:

"Such decision may be reviewed

"(a) In the case of an individual, by the Circuit Court of Appeals for the circuit whereof he is an inhabitant, or if not an inhabitant of any circuit, then by the Court of Appeals of the District of Columbia.

"(b) In the case of a person (other than an individual), except as provided in subdivision (c), by the Circuit Court of Appeals for the circuit in which is located the office of the collector to whom such person made the return, or in case such person made no return, then by the Court of Appeals of the District of Columbia.

"(c) In the case of a corporation which had no principal place of business or principal office or agency in the United States, then by the Court of Appeals of the District of Columbia.

"(d) In the case of an agreement between the Commissioner and the taxpayer, then by the Circuit Court of Appeals for the circuit, or the Court of Appeals of the District of Columbia, as stipulated in such agreement."

Subdivision (d) seems to authorize the parties to stipulate for review in the circuit court of appeals for any circuit that may be convenient, or in the Court of Appeals of the District of Columbia, if they so desire, regardless of which court would have jurisdiction in the absence of such stipulation. Ordinarily it is to be expected that the Commissioner will be willing to stipulate for review in the Court of Appeals of the District of Columbia, on account of convenience to the office of his General Counsel, except possibly in a case where that court has established a precedent adverse to him, and the circuit court of appeals which will have jurisdiction in

the absence of stipulation has not established such an adverse precedent.

Counsel for taxpayers, in considering the advisability of offering or consenting to stipulate for review in a court other than the one which will have jurisdiction in the absence of stipulation, will do well to consider not only the convenience of the place of hearing, but also the condition of the calendars, and the precedents established, in the different courts. Familiarity of counsel with the calendar practice and procedure at hearings, in the different courts, may also be in some cases an important factor. The difference in time allowed for filing the record (as distinguished from the petition) and the extent of the record required may also be influential in deciding between a circuit court of appeals and the Court of Appeals of the District of Columbia.35

§ 291. Stay of Collection Pending Review. If the taxpayer desires to stay the collection of the deficiency involved in the review, he should file a review bond (unless a jeopardy bond is already on file with the collectors) with the Board within six months from the time the decision of the Board has been rendered.37 A form of bond is in preparation by the Board. This bond takes the place of the usual supersedeas bond to accompany writs of error in regular appellate practice.

It would seem that no principal bond can be required if the taxpayer elects to pay the tax in controversy pending litigation, but it apparently is within the discretion of the Board to require a security or a deposit to cover costs, such as for having a copy made of the transcript of the stenographic report of the hearing and for comparing, or preparing and comparing, a transcript of the record.

35 See § 313, p. 450.

36 See § 164, p. 328.

37 Revenue Act of 1926, § 1001 (c).

38 The Board is authorized to fix a fee, not in excess of the fee fixed by law to be charged and collected therefor by the clerks of the district courts, for comparing, or for preparing and comparing, a transcript of the record. Revenue Act of 1926, § 1004 (b).