dissenting: I have no doubt that this is a question for the discretion of the Board. Congress gave the Board the power to make its rules of practice and procedure because it believed that in this limited field of adjudication of a special kind of controversy in which the Government was always a party and the exercise of its taxing power always being tested and construed this tribunal was the best judge of the details of the machinery for solving the multitude of disputes constantly arising. This power was exercised by the Board when in clear language it framed its rules. These rules must be either enforced as adopted or lose their force entirely, and this is equally true as against the taxpayer or the Commissioner. No one member should be permitted to decide, whether the rule, clearly not complied with, is to be temporarily set aside. Parties, through the bar, should not be required to cope with such uncertainty. The answer was not filed in time and no motion about it was timely made or embodied the required good cause. Hence, there was no answer.
I do not go so far as to say that judgment should be given for petitioner by default, because the prevailing opinion does not reach that point for consideration. The failure to file an answer may not require such a definitive result. But to me it seems that there has been a failure to file an answer according to the rules and the further proceedings should be shaped as if no answer whatever had been filed.
*281But, as I have said, the Board’s construction and enforcement of its own rules is within its own wisdom and my disagreement is only in the instance of its exercise.
GREEN, dissenting: The majority opinion is based squarely on the proposition that “ a court has the inherent power to suspend a rule of its own making.” After the citation and discussion of a number of cases, it is said:
While the facts in some of the cases quoted from and cited are different from those involved here, the decisions quoted point out the wide discretion vested in courts to suspend rules of their own making and satisfy us that we had the power, in making the order of December 22, 1926, to grant the respondent additional time to answer.
An examination of many cases leads me to the conclusion that the sounder rule and the one adopted in the majority of the jurisdictions is that courts may not suspend rules of their own making. (See Thompson v. Hatch, 3 Pick. (Mass.) 512; Rio Grande Irrigation & Colonization Co. v. Gildersleeve, 174 U. S. 603; Richardson v. Green, 130 U. S. 104, 112; United States v. Fremont, 18 How. 30; District of Columbia v. Humphreys, 11 App. D. G. 68; District of Columbia v. Roth, 18 App. D. C. 547; Talty v. District of Columbia, 20 App. D. C. 489; Drew v. Hogan, 26 App. D. C. 55; Nealon v. Davis, 18 Fed. (2d) 175.) This of course has nothing to do with the exercise of discretion where that is vested in the court, either by the rule or by statute.
Considerable reliance is placed upon the case of United States v. Breitling, 20 Howard 252. In Muller v. Ehlers, 91 U. S. 249, the Supreme Court, in speaking of the Breitling case, said:
That case went to the extreme verge of the law upon this question of practice and we are not inclined to extend its operation.
The Gildersleeve case, supra, was decided subsequent to the Breit-ling case.
The opinion in the instant case quotes our rule which provides that continuances, etc., may be ordered by the Board on its own motion or may be granted by it in its discretion on the-motion of either party filed in writing and showing good and sufficient cause therefor. It then holds that the omission to incorporate in the motion a showing of good and sufficient cause may be supplied long after the order was made. No reason is given for this conclusion and it is beiieved that none can be given. In so holding the Board is not exercising its discretion, but is in fact ignoring the clear provision of the rule.
In the opinion the following is quoted from section 907: “ Notice and opportunity to be heard shall be given to the taxpayer and the Commissioner,” and the decisions in the cases of Weaver v. Blair, 19 Fed. (2d) 16, and Reliance Manufacturing Co. v. Blair, 19 Fed. (2d) *282789, are cited, apparently for the proposition that the Commissioner has a right to be heard regardless of whether he has filed an answer. The cited cases do not so hold. All that either party is entitled to is a right to be heard in the manner prescribed by the statute and such rules as the Board itself may legally prescribe in accordance with the right vested in it by statute, and it is not here contended that the Board’s rule is illegal or invalid.
Emphasis is placed upon the fact that the Board has heretofore frequently “ allowed departures from the letter of the rules.” I am urtable to perceive any good reason why such a construction of the rules of this Board should form a basis or precedent for the continuation of such erroneous construction.
The result of the majority opinion is to leave the force and effect of the rules of this Board in such a condition of chaos there can be no uniformity in their enforcement. To my mind such a condition is wholly undesirable.
Muedock, dissenting: I dissent from the prevailing opinion but reserve my judgment on the question of whether or not the Board in another case might or might not have the right to exercise a sound discretion. Even if the member who extended the time had the right to exercise his discretion, no reasons for an extension of time within which to answer were advanced for his consideration and his action was arbitrary, without authority of law, an abuse of discretion and therefore erroneous. The order granting an extension of time within which to answer, in my opinion, should be set aside.
SiepkiN, dissenting: It seems to me that any rule of this Board, when promulgated, must be enforced according to its terms until changed by the Board, and that to permit a member to vary or nullify it will result in a great deal of uncertainty in the trial of proceedings. Whether or not the proceedings here are analogous to an action in court, it would seem that the statute gives the Board power to prescribe its rules and makes the determination of what those rules should be and their interpretation a question of policy. If that is so, every consideration of policy is on the side of a certainty that the rules will be strictly adhered to instead of being subject to variation in any case, according to the ideas of the division hearing the case.
Even if no answer were filed, I believe the Board would still have the duty of deciding the case, and that proof would have to be introduced in support of the allegations of the petition. Under our rules the burden of proof is on the petitioner and I do not believe that a mere failure to answer the allegations of the petition has the effect of converting those allegations into facts which the Board can accept as true as though they had been admitted.