dissenting: I can not agree with the opinion in this case, although I do agree with the result, modified to some extent as hereinafter indicated.
I do not believe that the doctrine of estoppel is involved. The petitioners came to the Board challenging the constitutionality of section 280, and I believe the Board should pass upon that issue of law. I believe that the Board has the legal power to pass upon that issue. . I can perceive no difference between the power of a tribunal to judicially construe a statute, and to judicially construe the Constitution, except in the manner of property. Any tribunal below the Supreme Court should approach a proposal to declare an Act of Congress invalid with diffidence and extreme caution. In this case I see no way of avoiding that issue.
It is a well recognized rule of pleading that estoppel is available only as a result of its being specifically pleaded. Estoppel was not pleaded in this case. As a basis for applying the doctrine of es-toppel, it is claimed that the petitioners came to the Board seeking relief, and that in doing so, they invoked the provisions of section 280, and having done so, are now estopped from challenging its constitutionality.
Section 280 does not declare a tax against petitioners. The Commissioner has not determined a tax, or a deficiency against the petitioners. What the Commissioner is here seeking to do is to fix upon and collect from petitioners an obligation of another person. It is an action in assumpsit. The Commissioner, in reality has not determined that petitioners are due a tax, as such, but is seeking to establish a liability against the petitioners to pay an obligation of another, which liability, if existent, arises by reason of the presence of such conditions as render them liable for those obligations, either in law. or in equity. Prior to the enactment of section 280, the Commissioner had the right to establish such a liability and collect from transferees, so liable, the tax due by the transferor. He then went into the courts and established the liability in the same way that any other creditor would have established such liability. Section 280 prescribes the liability of a transferee for the tax due by the transferor, as such liability exists in law or equity, that is, the same liability as exists with reference to any other creditor of the transferor. It is conceded that it was the design and purpose of *1291Congress that the Board should adjudicate such cases. However, the Commissioner can now pursue the game course which he pursued before the enactment of section 280. In the case at bar, he proceeded under section 280. He, and not the petitioners, invoked the provisions of section 280.
The petitioners, when they received the deficiency notice from the Commissioner, found themselves entangled in the meshes of section 280, and came to the Board for relief, in pursuance of the purpose and plan of Congress, as well as following the information given them by the Commissioner in that deficiency notice. The authorities cited and quoted in support of the decision-based on estoppel, do not seem to me to be applicable to the situation now being dealt with.
However, petitioners seem to rest their whole defense on the proposition that section 280 is unconstitutional and hence invalid. I believe it is plainly constitutional. The plain English of what it does is to declare that the transferor’s tax liability shall be deemed on a parity with his other liabilities and that after he transfers his assets to another person, that other person shall be liable for the tax debt as he is liable, in laAv or in equity, for other debts of the transferor.
The application of the provisions of section 280 may be unworkable before the Board, provided the procedure before the Board for determining the necessary issues involved, is restricted as some contend that it is restricted. But being unworkable before the Board does not render the statute unconstitutional.
In order to fix liability on a transferee, which is a secondary liability, a court of equity would adjudicate at least four issues:
1. The primary liability of the transferor must be established. Until that liability is established, there will not be granted a decree of secondary liability.
2. It must be shown that for some reason the primary obligor is irresponsive to the procedure for the collection of the obligation. Means for the collection of the obligation from the primary obligor must be exhausted before recourse may be had against the secondary obligor.
8. The total amount of obligations due by the primary obligor, and a list of obligees must be shown.
A court of equity will not render a decree against a secondary obligor, without first apportioning the total amount of obligations, as compared with total assets, among all the creditors. The Government is not a preferred creditor in a case of the kind we have here.
4. Having adjudicated the three foregoing issues, and having made such findings as will justify further procedure, the court will then determine whether or not the transferee is secondarily liable, either m law or in equity, and if so, to what extent.
*1292A court of equity has the power or jurisdiction to do all things necessary to adjudicate all the necessary issues involved, and to do complete justice to all parties concerned.
The Board is not a court in the full and legal sense of that term. It was created for the purpose of adjudicating income and estate-tax controversies and endowed with jurisdiction to perform such functions, and only such functions. For the adjudication of such cases, Congress endowed it with judicial powers, and being so endowed, it is, for the purposes for which it was created, essentially a court and may invoke the doctrine of implied, or inherent powers whenever, and wherever necessary, to the same extent as any other court. It is therefore my opinion that by reason of the fact that Congress had the constitutional right to grant such powers to the Board, and by reason of the fact that Congress put upon the Board the duty of adjudicating controversies arising under and by virtue of section 280, and that by virtue of the well recognized and often invoked doctrine of implied powers, the Board has the legal right to use all necessary means, and to inquire into and adjudicate all necessary phases of the subject matter under consideration, and bring before it all necessary parties and do all things necessary to be done to a complete adjudication of all contested and necessary issues.
It has been urged that in determining the question of secondary liability that the parties are entitled to, and may demand a jury; and because of the fact that no provision has been made for a jury trial before the Board, that the application of the provisions of section 280 is unworkable by the Board. There may be cases involving that section, when the defense is one in law rather than in equity, where the parties would have a right to demand a jury, but a' jury may be waived and unless and until that demand is made, that impediment will not arise. If and when that impediment does arise, it will operate to oust the jurisdiction of the Board to hear and determine that case.
In the case at bar, the liability of the primary obligor is admitted. Also it is admitted that the petitioners are transferees in the meaning of section 280. Also it is admitted that each received in distribution, without consideration, assets of the transferor, in value greater than the obligation of the- transferor for taxes, and that the primary obligor is now insolvent. There is only one necessary fact not specifically admitted, and that is that there were no creditors other than the Government entitled to share in those assets. From all the circumstances of this case, Ave may reasonably conclude that there were no other creditors, and with that conclusion reached, and in view of the admission that each distributee received more in distribution than the amount of the tax due, a decision should be made approving *1293the action of the Commissioner, that is, that each is liable for the full amount of the tax, limited of course in the aggregate to the amount of the tax with interest.
I deem it unnecessary for the Board to consider the matter of contribution as among the petitioners themselves. They have their remedy, independent of the Board’s functions as to that feature of the case.