dissenting: The petitioners are transferees of assets of a dissolved corporation. The majority opinion holds the running of the statute of limitations bars the collection of any further taxes from the corporation, and, consequently, no liability attaches to the transferees. The facts are not in dispute. The corporation’s tax re*788turns for the year 1918 were filed on June 15,1919. Within the five years permitted by the statute for the assessment and collection of the taxes a so-called waiver was executed by the respondent and Godfrey, one of the liquidating trustees. This waiver purported to extend the period within which the taxes might be assessed for one year from the date the waiver was signed. Before the expiration of the period as extended a second waiver was executed by the same parties which purported to extend the period for assessment and collection for a further period of one year from the date of its execution.
At the trial of the case petitioner proved the date of filing the corporation’s return, and rested. The respondent thereupon produced the waivers executed by Godfrey and the respondent. God-frey, it was admitted by his counsel, signed as liquidating trustee. The majority opinion holds the respondent has not sustained his burden of establishing the sufficiency of the waivers. It is stated as a general proposition of law that trustees in matters involving discretion must act jointly and the record is silent on the matter of whether or not Godfrey had authority to act for his cotrustee. In the Farmers Feed case we held that, where a taxpayer makes a prima faeie showing that collection of a deficiency is barred, the burden shifts to the respondent to bring himself within any exception to the statute upon which he relies. We pointed out in that opinion, as one of the compelling reasons for our conclusion, that the exceptions to the statute which would prevent its running were matters peculiarly within the knowledge of the respondent. We said in part:
The determination of the tax controversies which are daily before us requires a highly practical handling and we see no reason why the Commissioner should stand idly by and decline to present to ns any matters in avoidance of petitioner’s plea if in fact the limitations period has not run by reason of an exception contained in the statute.
In the Carnation Milk Products case, 15 B. T. A. 556, we held that the respondent’s burden of going forward after the taxpayer had made his prima fade case was not met “ unless he shows that upon which he acted to be sufficiently effective to justify his reliance upon it.” Neither of these cases decide how far the respondent must go in order to satisfy the burden of going forward. The effect of the Godfrey decision is to require the respondent to go the whole way and prove conclusively the validity in fact and law of the exception upon which he relies. This position can not be sustained on the Farmers Feed and Carnation Milk cases when it is recalled, as pointed out above, that one of the reasons for those decisions was that the party to whom passed the burden of going forward had within his possession the evidence to meet it. Applying that rule here, I think that when the respondent produced the consents ad*789mittedly signed by Godfrey as liquidating trustee, he produced evidence “ sufficiently, effective to justify his reliance upon it ” and thus did all that was required of him at that stage of the case. In Toledo, etc. R. R. v. Star Flouring Mills Co. (C. C. A.), 146 Fed. 953, the court quotes with approval Klunk v. Hocking Valley Railway Co., 77 N. E. 752, as follows:
The general rule would seem to be well established by an almost unbroken line of authority, that to rebut and destroy a mere prima facie case, the party upon whom rests the burden of repelling its effect, need only to produce such amount or degree of proof as will counter-avail the presumption arising therefrom. In other words, it is sufficient if the evidence offered for that purpose counter-balance the evidence by which the prima facie' case is made out and established. It need not overbalance or outweigh it. Smith v. Sac. Co., 11 Wall. 139, 20 L. Ed. 102; Stewart v. Lansing, 104 U. S. 505, 26 L. Ed. 866; Foster v. Hall, 12 Pick. 89, 22 Am. Dec. 400; R. R. Co. v. Brazzil, 72 Tex. 233, 10 S. W. 403.
See also Jones on Evidence, sec. 181.
This seems to me to be the proper rule to be applied in this proceeding, and if it is, then when the respondent produced the waivers the burden of go.ing forward shifted back to the petitioners and it became incumbent on them to show that the waivers were insufficient to stay the running of the statute of limitations. Carrying out the majority opinion to its logical conclusion, the respondent in every case in which he relies on a waiver would be required to show, among other things, that every person signing in a representative capacity was the representative he purported to be, that the person signing was sui juris, that he was authorized to sign by his principal, and that he acted in conformity to state law. The well-nigh impossibility of procuring such proof is manifest and it was not held necessary in United States v. Kemp, 12 Fed. (2d) 7.
Godfrey knows whether or not he acted with the acquiescence or consent of Hayward in signing the waivers, and it seems to me that it was his duty to prove that he was not so acting, if such be the case. Of the three trustees, Godfrey owned 59 per cent of the stock of the corporation, Waldo (at the time the waivers were executed, deceased) owned 86 per cent, and Hayward, some or all of the remaining 5 per cent. Godfrey was one of the petitioners in these proceedings. He signed the waivers and yet seeks here to relieve himself of the effect of his acts and asks that we presume that he did not have authority to do what he did do, and by so presuming to relieve him of paying to the United States an amount due it which it would have been in a position to collect but for his act. If there be no other basis, the rule of estoppel should be applied to Godfrey and he should not now be permitted to plead a lack of authority from his cotrustee.
*790Even if it be taken as established under the State law that God-frey’s powers were limited, it does not follow that he could not waive the statute of limitations under the Federal taxing act. Aldridge v. United States, 64 Ct. Cls. 424; Davis v. United States, 27 Fed. (2d) 630; Estate of Ben Pearl, 18 B. T. A. 249.
There is another basis, however, for my dissent. The so-called trust that was established by the State of Connecticut when steps were taken to dissolve the corporation was one primarily for the benefit of the creditors, secondarily for the benefit of the stockholders. Whether or not a tax is a debt, it is undoubtedly a liability and one which a trustee in liquidation is required to discharge as well as any other indebtedness of the corporation. The United States is one of the beneficiaries of this so-called trust established by virtue of the laws of Connecticut upon the dissolution of one of its corporate creatures. Ordinarily, a trustee may not plead the statute of limitations against the beneficiary of a trust.
The majority opinion seeks to distinguish the case of Kemp v. United States, 12 Fed. (2d) 7, but it seems to me that that case is directly in point. There, as here, the waiver was signed by some of the trustees in liquidation, but not by all of them. In the absence of evidence to the contrary, the court indulged the presumption that the waiver there given was authorized by the other trustees, or if not previously authorized by them, they approved the act of the trustees signing by sitting idly by and accepting the benefits of their action. This should be our position in the instant case.
MoRRis, Smith, Green,1 Murdock, and Black agree with this dissent.