dissenting: I agree that it is not necessary that both the taxpayer and the Commissioner sign the same instrument expressing their consent to an extension of time for assessment or collection. The consent of the Commissioner, in my opinion, can *1229be given in a letter duly signed. However, there must be some written instrument signed by the Commissioner, or his duly -authorized agent, accepting a waiver previously signed by the taxpayer. In the prevailing opinion no reliance is placed upon the first waiver, which was executed by the taxpayer, on February 18, 1924, but it is stated that, regardless of this waiver, the one executed by the taxpayer on February 18,1926, and subsequent waivers, are sufficient. We must keep in mind that when facts have been disclosed which clearly show that the statute of limitations has run, the respondent has the burden of going forward to show that the period has been extended by proper waiver. In my opinion this is not done by a showing that a waiver was executed by the taxpayer on February 18, 1926. The evidence does not disclose that it was signed by any one authorized by the Commissioner to sign it prior to the passage of the 1926 Act, even conceding that the signature of the Commissioner placed thereon in the manner indicated was a proper signature. If it was not properly signed by the Commissioner or his representative prior to the passage of the 1926 Act, the assessment was clearly barred when the 1926 Act was passed, and under section 278 (e) of that act the tax liability could not be revived by subsequent waivers and the case comes squarely within our decision in Corn Products Refining Co., 22 B. T. A. 605.
The burden of proof was upon the Commissioner to show that the waiver was executed by both parties prior to the passage of the 1926 Act in order to sustain his position that the statute of limitations had not run. This he has failed to do.
In my opinion, the signatures placed on the waivers by the secretary to Mr. Eobinson at his direction were unauthorized. It may well be that if the Commissioner’s signature were placed on the waiver by Eobinson’s secretary in Ms presence and at Ms direction, it might be considered his own act. The evidence, however, does not disclose that this was the case.
I think it is clear that the statute contemplated that the Commissioner should sign waivers personally or that he should designate or authorize others to sign them for him, and that those so authorized by the Commissioner do not have authority to delegate that power to any one else. I think this is made clear from the language of the Supreme Court in the case of Florsheim Bros. Dry Goods Co. v. United States, 280 U. S. 453, where the Court, in referring to the necessity of the consent of the Commissioner in writing, said:
If a reason must be found, it exists in the general desirability of the requirement as an administrative matter. It serves to keep the Commissioner in closer touch with the matters he is charged to administer. It avoids claims *1230of improvident execution of waivers and unauthorized exactions by subordinates of the department * * * and it provides a formal procedure which is generally desirable * * *.
In the Stange and Aiken cases, recently decided by the Supreme Court, it relied upon and quoted from the Florsheim case as above as authority for statements made in those cases with respect to the requirement of the Commissioner’s signature.
If subordinates in the Department, without authority from the Commissioner, approve waivers, the very purpose of the requirement of the statute would be overthrown. The Commissioner would not be kept in close touch with the matters he is charged to administer. Improvident execution of waivers by subordinates of the Department would not be obviated. I think, therefore, • that the Commissioner’s name placed on the waivers by Robinson’s secretary was unauthorized and did not constitute the consent of the Commissioner in writing.
I agree that the Commissioner’s signature, placed on a waiver in the absence of any evidence with respect to authority of the person who put it there, might be presumed to be his authorized signature, but the evidence in this case is sufficient to overcome that presumption.
I am inclined to think that the correspondence which appears to be relied upon to some extent to sustain the validity of the waivers and which passed prior to the execution of any waiver, is not shown to be sufficient in this case. The correspondence preceding the letters of December 16, 1927, November 5, 1928, and September 25, 1929, may, in so far as the record discloses, have been written by subordinates in the Department and the very purpose of the requirement of the consent in writing of the Commissioner and the. taxpayer to the waiver is to avoid improvident execution of waivers and unauthorized exactions by subordinates and to keep the Commissioner in closer touch with matters he is charged to administer. The correspondence referred to does not disclose that the Commissioner, or any one duly authorized by him, would accept or approve the waivers when executed by the taxpayer. The respondent does not recognize the waivers received pursuant to the request for waivers as being complete when received, in view of subsequent action in having them executed by Robinson’s secretary, a wholly unauthorized act.
For the foregoing reasons, I find myself unable to concur in the majority opinion in this case.