Turner,
dissenting: Lewis-Hall Iron Works v. Blair, 23 Fed. (2d) 972, is cited in the majority opinion to sustain the conclusion that a petition must be filed with a proper person at the offices of the Board in Washington, D. C. In my opinion that case does not sustain the conclusion reached, but is authority only for a conclusion that the mere deposit of a petition at the offices of the Board after office hours is not the filing of a petition within the meaning of the statute where it is not actually received by an official or an employee of the Board until after the expiration of the statutory period. In other words, it is not the taking of the petition to a particular place that is determinative, but the delivery of the petition to a proper person. No one has suggested that the Chairman of the Board is not a proper person to receive a petition.
Furthermore, on the facts in this case, the effect of the majority ruling is a reduction of the period allowed by statuté for filing petitions. The statutory period begins at midnight of the day on which the notice of deficiency is mailed and ends at midnight of the ninetieth day. United Telephone Co., 1 B. T. A. 450. Under the ruling here the statutory period is reduced from midnight to the end of office hours on the ninetieth day unless some member or employee of the Board happens to be at the office of the Board or makes a special trip there to receive petitions after office hours. We have no power to legislate by decision or through the promulgation of rules.
In F. O. Stabler, 27 B. T. A. 342, we held that the delivery and receipt of a telegram was a proper filing of a petition within the meaning of the statute, and, in my opinion, it logically follows that if we accept telegrams as petitions, we must also accept the usual and customary methods of sending and delivering telegrams. Otherwise F. O. Stabler, supra, should be overruled. The petitioner took every precaution to see that the telegram, which was directed to the Chairman of the Board, was delivered prior to midnight on the date it was sent and the telegraph company undertook to comply with all of the instructions of the petitioner. The telegram was received by the Chairman by one of the usual and customary methods of delivering telegrams. The actual delivery of the paper on which it was written was postponed by direction of the Chairman himself, and it seems apparent on these facts that the telegraph company was thereafter holding the paper for the Chairman and not for the petitioner.
Black, Morris, McMahon, and Harron agree with this dissent.