(dissenting). I am unable to subscribe to the court’s opinion in its treatment of the assignment of error relating to the Commonwealth being allowed to cross-exam-inc the defendant’s wife as to whether she, as executrix of her father’s estate, had filed a gift tax return.
The opinion not only seriously undermines traditional rules of evidence and trial procedure but clears the way for far ranging interrogation of witnesses about complex tax matters. It also sanctions the right of the prosecution to extract from a witness an admission of a failure to file a tax return, which a judge or a jury may construe as a violation of the tax law, when in fact and in law there may have been no such violation.
I.
It is axiomatic that any question asked of a witness at a trial must be relevant to some issue in the case. The reasons for this rule are well known and do not require elaboration here. See McCormick, Evidence, §§ 151, 152. If irrelevant evidence is admitted the error may be harmless provided that no unwarranted and prejudicial inferences are likely to be drawn from this evidence. But the test must always be: (1) was the evidence relevant; (2) if it was not relevant, was it prejudicial.
In the instant case the question put to Mrs. O’Toole was irrelevant to any issue in the case and was predicated on a misconception of the requirements of the Federal gift tax law. The specious “logic” of the question seems to be that if Mrs. O’Toole’s father had made gifts to her in 1959 through 1961 then she, as executrix of her father’s estate, would have been obliged to file a gift tax return; her answer that she had not filed any such return would be evidence *637that no such gifts were made and thus the deposits in the defendant’s bank account were not gifts from his wife’s father.
Before the gift tax question was asked, it had been established that Mrs. O’Toole’s father had died in 1964. In these circumstances she was under no obligation to file a gift tax return for the years 1959 to 1961. The donor of a gift has the following obligation to file a gift tax return, “(a) . . . Any individual who in any calendar year makes any transfers by gift (except those which under section 2503 (b) are not to be included in the total amount of gifts for such year) shall make a return with respect to the gift tax imposed by subtitle B.” Int. Rev. Code of 1954, § 6019. Treasury Regulation § 25.6019-1 (a) provides: “Any individual . . . who . . . within any calendar year . . . makes a transfer or transfers by gift to any one donee of a value or total value in excess of $3,000 . . . must file a gift tax return on Form 709 for that year.” The return for gifts made during a given calendar year must be filed by April 15 of the subsequent year (Int. Rev. Code of 1954, § 6075 [b]), but cannot be filed before the close of the calendar year in which the gifts were made.1
Treasury Regulation § 25.6019-1 (b) provides: “If the donor dies before filing his return, the executor of his will or the administrator of his estate shall file the return.”
I think that the purpose of Treas. Reg. § 25.6019-1 (b) is to ensure that someone is responsible for making the gift tax returns which the donor would have been obliged to make if he had lived. Those returns would be the one due on gifts made in the year of his death, and possibly the one due on April 15 of the year of his death for gifts in the preceding year.
In the case of a donor who dies owing a Federal gift tax, the following regulation applies to the executor: “If the donor dies before the tax is paid the amount of the tax is a debt due to the United States from the decedent’s estate and *638his executor ... is responsible for its payment out of the estate. ... As to the personal liability of the executor . . . see section 3467 of the Revised Statutes (31 TT.S.C. 192), which reads as follows: ‘Every executor . . . who pays, in whole or in part, any debt due by the person or estate for whom or for which he acts before he satisfies and pays the debts due to the United States from such person or estate, shall become answerable in his own person and estate to the extent of such payments for the debts so due to the United States, or for so much thereof as may remain due and unpaid.’ ” Treas. Reg. § 25.2502-2.2 *If any gift taxes were due on gifts made by the deceased in years long prior to his death then the executor, as a practical matter, if he knew that no gift tax had been paid by the deceased, would file a return for those prior years, in order to show the computation of the tax.3 I am aware of cases in which an executor did file a gift tax return where a tax was due.4 It is difficult to construe such a practical necessity as imposing a duty on an executor to file such a return where no tax is due.
The majority say that, “The judge undoubtedly made his ruling in recognition of the obligation of a legal representative of a deceased person to pay all debts and the consequent possibility or likelihood that, if returns had not been made for the years of the gifts, there would be an obligation of the executrix to make one.”
An interpretation of the Federal tax laws most favorable to the Commonwealth would require the establishment of several subsidiary facts in order to make the fatal question *639relevant. If it should be ruled that the executrix must file a return for long prior years when a tax is due for those years, then, at the very least, it should be established that a tax was in fact due for those years.
In the instant case the record is devoid of any evidence to show that a gift tax was due. The statute provides for certain exemptions and exclusions.5 In the event that the alleged gifts with which we are here concerned come within the statutory exemptions and exclusions so that no tax would be due, I am unable to discover any sound reason why the executrix should be required to file returns for the years 1959 through 1961.6
Even if the executrix were obliged to file returns for years in which no tax were due if the donor had failed to file, there is nothing in the record before us to show that the donor had not in fact filed returns.
Thus, even on this interpretation of Federal tax law most favorable to the Commonwealth, when the defendant objected the judge should have excluded the question unless the Commonwealth offered to introduce other evidence to show that Mrs. O’Toole had an obligation as executrix to file a gift tax return. See Donahue v. Kenney, 330 Mass. 9; Thalin v. Friden Calculating Mach. Co. Inc. 338 Mass. 67, 69; Wigmore, Evidence (3d ed.) §§ 14,1871 (2).
II.
The opinion includes the following statement: “In any event, the defendant could have asked the judge to instruct the jury that there was nothing before them to establish or warrant the inference that the witness was under any legal obligation to file a return and that whether a return would have been due from anyone would have depended on a number of factors not shown in the evidence. Such instruction of course should have teen given if requested” (emphasis *640supplied). This statement, it seems to me, indicates that the majority believe that the question was inadmissible, at least without first providing a basis for the question being asked.
It is also worthy of comment that the opinion refers to the “continued” cross-examination of the witness in which she was asked whether “her father had filed a gift tax return or the witness had done so” and then observes that “ [t]he court excluded these inquiries.” This is consistent with the position of the defendant7 but cannot be reconciled with the previous action of the trial judge nor can it be reconciled with the majority opinion. These inconsistencies serve to demonstrate the danger of admitting in evidence even an isolated question on an extraneous matter requiring specialized knowledge. Certainly if the first question asked of her was admissible the question as to whether her father had filed a return was admissible. If it is conceded that the question was not relevant and should have been excluded on the defendant’s objection, the only logical basis for affirming the conviction would be a ruling that the question was not prejudicial. "While I would not agree, I could at least understand the rationale of the opinion if it ruled that the question was inadmissible but that in considering all of the testimony the majority concluded that the defendant had not shown that the error was prejudicial.
One part of the Commonwealth’s case most damaging to the defendant was the evidence of large hank deposits in the years in question. The defendant offered testimony to explain the source of the money. I have no doubt that the answer of Mrs. O’Toole to the question here objected to served the purpose for which it was asked, namely, to imply that no gifts had been made.
It seems obvious from the arguments in the briefs that neither the Commonwealth nor the defendant reached the *641conclusion of the majority that “ [t]he most likely inference, as the matter was left, was that the executrix, if she had received a gift, might have been under an obligation.” Each brief treated this evidence as showing the commission of a crime, and the Commonwealth’s main argument was that the defendant’s wife could not be prejudiced because she was not a defendant. If both the Commonwealth and the defendant were under the impression that evidence of a crime had been presented, it is unlikely that the jury were more enlightened.
III.
Perhaps the most alarming implication of the majority opinion is that a defendant who makes a timely objection to a question must, in order to preserve his initial objection, continue to attack the implication of the question by redirect examination and by requesting the judge to instruct the jury not to draw the unwarranted inferences. It seems to me that the majority are saying that even though the question should have been excluded as irrelevant, and even though the defendant may have been prejudiced by the answer to the question, he cannot now be heard to complain “where he did not avail himself of his undoubted right and power to extinguish any materially adverse effect.” Heretofore all that has been required to preserve an objection to a question is to make the objection timely and to save an exception to the adverse ruling of the judge. Now, it seems, much more is required. Where a question should not have been admitted without some showing that it would be connected to some relevant issue in the case, the defendant is now required to introduce evidence to show that the question was irrelevant.8 “If the opponent duly objected [emphasis in original] and was erroneously overruled in the first instance, he could not claim to present similar inadmissible facts, because his objection would (in theory) save him, on appeal, from any harm which may accrue, and he needs no other protection” (emphasis supplied). Wig-*642more, Evidence (3d ed.) § 15. In addition he is required to request that a specific instruction be made to the jury to neutralize the prejudicial effect of the inadmissible question. Regardless of the salutary effect such measures may have had on the defendant’s case, such a rule is tantamount to putting an untenable burden on the defendant. One objection to a question should be enough.
IV.
It is obvious from the briefs of the defendant and the Commonwealth that both were under the erroneous impression that a failure of Mrs. 0 ’Toole to file a gift tax return as executrix would have been a criminal violation of the Federal tax laws if a gift had been made and no return filed by the donor. Although the prejudicial effect of an inference that the witness violated the tax laws was offset in this case by the fact that the jury would first have to believe that a gift was in fact made, the danger in permitting questions which erroneously suggest criminal violations is heightened by the opinion of the majority. For they hold that the burden rests on the defendant to neutralize these prejudicial inferences. The Commonwealth should not be permitted to range far afield in the complex area of tax law by asking questions which overtly create a definite impression that a witness had violated a tax statute when the question asked had no relevance to any issue in the case. Furthermore, it should not be incumbent upon the defendant to undo the prejudicial effect, as the majority suggest.
U. S. Treas. Dept. Int. Eev. Serv. Form 709, p. 3. There is an exception where the return is filed by an executor of a deceased donor.
It may be noted that Mrs. 0 ’Toole as donee had no obligation to file an information return, but if any tax on the gift is not paid when due by the donor the tax becomes a lien on the gift and the donee is liable for the tax up to the amount of the gift. Int. Rev. Code of 1954, § 6324 (b).
Treas. Reg. § 25.6151-1: “The tax shown on the gift tax return is to be paid by the donor at the time and place fixed for filing the return (determined without regard to any extension of time for filing the return), unless the time for paying the tax is extended in accordance with the provision of section 6161 . . (emphasis supplied).
See Estate of Powers, 13 T. C. M. 1189, where an executor filed a return in 1949 on gifts made by the decedent in 1941. See also Estate of Baer, 16 T. C. M. 949.
Int. Eev. Code of 1954, §§ 2503 (b), 2521.
Compare the duty of the donor to file a gift tax return if the amount of the gift exceeds $3,000, even though no tax is due. Int. Eev. Code of 1954, § 6019.
It is suggested in Wigmore, Evidence (3d ed.) § 15, at p. 309, that a “party who has originally objected to inadmissible evidence [may be] . . . deemed to have waived the objection by subsequently introducing similar evidence himself.”
See footnote 7.