(dissenting).
Under Minn. St. 271.06, subd. 2, in an appeal from an order of the commissioner of taxation to the Board of Tax Appeals, the attorney general is authorized to:
“* * * represent the commissioner, if requested, * * * except in cases where the attorney general has appealed in behalf of the state, or in other cases where he deems it against the interests of the state to represent the commissioner, in which event the attorney general may intervene or be substituted as an appellant in behalf of the state at any stage of the proceedings.” (Italics supplied.)
Thus, in such appeals, the attorney general is granted the option to appear in the capacity of counsel or representative of the commissioner in support of the order appealed from; or to be “substituted” as appellant in behalf of the state in opposition to such order. As stated in this section, the latter, option may be exercised by the attorney general “at any stage of the proceedings” when he deems the order appealed from to be “against the interests of the state.”
The dispute here relates to the meaning of the words “substituted as an appellant” under § 271.06, subd. 2. The taxpayer contends that the term contemplates only a situation wherein a taxpayer, or some *129other person or entity, appealing from an order of the commissioner consents to a request of the attorney general, acting in behalf of the state, to be substituted for such appellant; and that otherwise, the attorney general is bound by the 60-day limitation provided for in this section. The majority opinion here adopts this viewpoint.
The attorney general contends that the provision authorizing him to be “substituted as an appellant” has reference to appeal situations wherein at first he has appeared in the capacity of representative of the commissioner, but where later in the proceedings, having deemed the order to be against the interests of the state, he decides to be substituted therein as an appellant in the state’s behalf. He points out that in the first situation his appearance as representative of the commissioner would be in support of the order, while in the latter his appearance as an appellant in behalf of the state would be to attack it as against the state’s interests. That, in making such a decision, the legislature did not intend the 60-day limitation provision to apply, he asserts, is manifested by the clause in § 271.06, subd. 2, which permits him to exercise this right to be substituted “at any stage of the proceedings.”
I am in accord with the position taken by the attorney general. Under the majority’s interpretation of § 271.06, in many cases the state will be deprived of an adequate opportunity to appeal from orders of the commissioner, or otherwise be limited in such appeals to the issues raised in the notice of appeal of a taxpayer-appellant whose objectives are usually adverse to those of the state. Thus, where a taxpayer waits until the 60th day after the filing of an order by the commissioner to file a notice of appeal therefrom, and where in turn the commissioner, as authorized by § 271.06, subd. 2, waits until the 5th day thereafter to transmit a copy of the notice of appeal to the attorney general, the latter’s right to be “substituted as an appellant” (even if he could obtain the taxpayer-appellant’s consent thereto) will have expired before he becomes aware that an order of the commissioner has been filed, or that an appeal has been taken. This possibility becomes more manifest when it is recalled that numerous orders of the commissioner are filed daily, of which no notice is required to be given to the attorney general.