(i) to the beneficiary or beneficiaries whom the judge may have designated by a writing filed prior to his death with the chief judge, except that in the case of the chief judge such designation shall be by a writing filed by him, prior to his death, as prescribed by the Tax Court; (ii) if there be no such beneficiary, to the widow of such judge; (iii) if none of the above, to the child or children of such judge and the descendents of any deceased children by representation; (iv) if none of the above, to the parents of such judge or the survivor of them; (v) if none of the above, to the duly appointed executor or administrator of the estate of such judge; and (vi) if none of the above, to such other next of kin of such judge as may be determined by the chief judge to be entitled under the laws of the domicile of such judge at the time of his death. Determination as to the widow, child, or parent of a judge for the purposes of this paragraph shall be made by the chief judge without regard to the definitions in subsections (a) (6) and (7). (2) In any case in which the annuities of all persons entitled to annuity based upon the service of a judge shall terminate before the aggregate amount of annuity paid equals the total amount credited to the individual account of such judge. with interest at 4 percent per annum to December 31, 1947, and 3 percent per annum thereafter, compounded on December 31 of each year, to the date of the death of such judge, the difference shall be paid, upon establishment of a valid claim therefor, in the order of precedence prescribed in paragraph (1). (3) Any accrued annuity remaining unpaid upon the termination (other than by death) of the annuity of any person based upon the service of a judge shall be paid to such person. Any accrued annuity remaining unpaid upon the death of any person receiving annuity based upon the service of a judge shall be paid, upon the establishment of a valid claim therefor, in the following order of precedence: (A) to the duly appointed executor or administrator of the estate of such person; (B) if there is no such executor or administrator payment may be made, after the expiration of thirty days from the date of the death of such person, to such individual or individuals as may appear in the judgment of the chief judge to be legally entitled thereto, and such payment shall be a bar to recovery by any other individual. (k) Payments to persons under legal disability. Where any payment under this section is to be made to a minor, or to a person mentally incompetent or under other legal disability adjudged by a court of competent jurisdiction, such payment may be made to the person who is constituted guardian or other fiduciary by the law of the State of residence of such claimant or is otherwise legally vested with the care of the claimant or his estate. Where no guardian or other fiduciary of the person under legal disability has been appointed under the laws of the State of residence of the claimant, the chief judge shall determine the person who is otherwise legally vested with the care of the claimant or his estate. () Method of payment of annuities. Annuities granted under the terms of this section shall accrue monthly and shall be due and payable in monthly installments on the first business day of the month following the month or other period for which the annuity shall have accrued. None of the moneys mentioned in this section shall be assignable, either in law or in equity, or subject to execution, levy, attachment, garnishment, or other legal process. (m) Computation of annuities. The annuity of the widow of a judge electing under subsection (b) shall be an amount equal to the sum of (1) 14 percent of the average annual salary received by such judge for judicial service and any other prior allowable service during the last 5 years of such service prior to his death, or prior to his receiving retired pay under section 7447 (d), whichever first occurs, multiplied by the sum of his years of judicial service, his years of prior allowable service as a Senator, Representative, Delegate, or Resident Commissioner in Congress, his years of prior allowable service performed as a member of the Armed Forces of the United States, and his years, not exceeding 15, of prior allowable service performed as a congressional employee (as defined in section 1(c) of the Civil Service Retirement Act (5 U.S.C. 2251(c)), and (2) three-fourths of 1 percent of such average annual salary multiplied by his years of any other prior allowable service, but such annuity shall not exceed 371⁄2 percent of such average annual salary and shall be further reduced in accordance with subsection (d), if applicable. (n) Includible service. Subject to the provisions of subsection (d), the years of service of a judge which are allowable as the basis for calculating the amount of the annuity of his widow shall include his years of service as a member of the United States Board of Tax Appeals and as a judge of the Tax Court, his years of service as a Senator, Representative, Delegate, or Resident Commissioner in Congress, his years of active service as a member of the Armed Forces of the United States not exceeding 5 years in the aggregate and not including any such service for which credit is allowed for the purposes of retirement or retired pay under any other provision of law, and his years of any other civilian service within the purview of section 3 of the Civil Service Retirement Act (5 U.S.C. 2253). (0) Simultaneous entitlement. Nothing contained in this section shall be construed to prevent a widow eligible therefor from simultaneously receiving an annuity under this section and any annuity to which she would otherwise be entitled under any other law without regard to this section, but in computing such other annuity service used in the computation of her annuity under this section shall not be credited. (p) Estimates of expenditures. The chief judge shall submit to the Bureau of the Budget annual estimates of the expenditures and appropriations necessary for the maintenance and operation of the survivors annuity fund, and such supplemental and deficiency estimates as may be required from time to time for the same purposes, according to law. The chief judge shall cause periodic examinations of the survivors annuity fund to be made by an actuary, who may be an actuary employed by another department of the Government temporarily assigned for the purpose, and whose findings and recommendations shall be transmitted by the chief judge to the Tax Court. (q) Transitional provision. In the case of a judge who dies within 6 months after the date of enactment of this section after having rendered at least 5 years of civilian service computed as prescribed in subsection (n), but without having made an election as provided in subsection (b), an annuity shall be paid to his widow and surviving dependents as is provided in this section, as if such judge had elected on the day of his death to bring himself within the purview of this section but had not made the deposit provided for by subsection (d). An annuity shall be payable under this section computed upon the basis of the actual length of service as a judge and other allowable service of the judge and subject to the reduction required by subsection (d) even though no deposit has been made, as required by subsection (h) with respect to any of such service. (r) Waiver of civil service benefits. Any judge electing under subsection (b) shall, at the time of such election, waive all benefits under the Civil Service Retirement Act. Such a waiver shall be made in the same manner and shall have the same force and effect as a waiver filed under section 7447 (g) (3). (s) Authorization of appropriation. Funds necessary to carry out the provisions of this section may be appropriated out of any money in the Treasury not otherwise appropriated. (Added Pub. L. 87-370, § 1, Oct. 4, 1961, 75 Stat. 796.) § 7451. Fee for filing petition. The Tax Court is authorized to impose a fee in an amount not in excess of $10 to be fixed by the Tax Court for the filing of any petition for the redetermination of a deficiency. (Aug. 16, 1954, ch. 736, 68A Stat. 884.) CROSS REFERENCES Disposition of fees, see section 7473 of this title. Fee for filing petition, see rule 7 (b), Appendix to this title. Method of payment of fees, see rule 1 (e), Appendix to this title. § 7452. Representation of parties. The Secretary or his delegate shall be represented by the Chief Counsel for the Internal Revenue Service or his delegate in the same manner before the Tax Court as he has heretofore been represented in proceedings before such Court. The taxpayer shall continue to be represented in accordance with the rules of practice prescribed by the Court. No qualified person shall be denied admission to practice before the Tax Court because of his failure to be a member of any profession or calling. (Aug. 16, 1954, ch. 736, 68A Stat. 884; Sept. 22, 1959, Pub. L. 86368, § 2(a), 73 Stat. 648.) AMENDMENTS 1959-Pub. L. 86-368 substituted "Chief Counsel for the Internal Revenue Service or his delegate" for "Assistant General Counsel of the Treasury Department serving as Chief Counsel of the Internal Revenue Service, or the delegate of such Chief Counsel,". EFFECTIVE Date of 1959 AMENDMENT Amendment of section by Pub. L. 86-368 effective when the Chief Counsel for the Internal Revenue Service first appointed pursuant to amendment of section 7801 of this title by Pub. L. 86-368 qualifies and takes office, see note set out under section 7801 of this title. RULES OF PRACTICE IN THE TAX COURT Admission to practice, see rule 2, Appendix to this title. Counsel; appearance, see rule 24, Appendix to this title. Personal representation in lieu of counsel, see rule 3, Appendix to this title. TAX COURT FORMS Entry of appearance, see Form 305, Appendix to this title. § 7453. Rules of practice, procedure, and evidence. The proceedings of the Tax Court and its divisions shall be conducted in accordance with such rules of practice and procedure (other than rules of evidence) as the Tax Court may prescribe and in accordance with the rules of evidence applicable in trials without a jury in the United States District Court of the District of Columbia. (Aug. 16, 1954, ch. 736, 68A Stat. 884.) CROSS REFERENCES Rules of Practice before the Tax Court of the United States, see Appendix to this title. § 7454. Burden of proof in fraud and transferee cases. (a) Fraud. In any proceeding involving the issue whether the petitioner has been guilty of fraud with intent to evade tax, the burden of proof in respect of such issue shall be upon the Secretary or his delegate. (b) Cross reference. For provisions relating to burden of proof as to transferee liability, see section 6902 (a). (Aug. 16, 1954, ch. 736, 68A Stat. 884.) RULES OF PRACTICE IN THE TAX COURT Burden of proof, see rule 32, Appendix to this title. 87455. Service of process. The mailing by certified mail or registered mail of any pleading, decision, order, notice, or process in respect of proceedings before the Tax Court shall be held sufficient service of such pleading, decision, order, notice, or process. (Aug. 16, 1954, ch. 736, 68A Stat. 884; Sept. 2, 1958, Pub. L. 85-866, title I, § 89 (b), 72 Stat. 1665.) AMENDMENTS 1958 Pub. L. 85-866 inserted "certified mail or" preceding "registered mail". EFFECTIVE DATE OF 1958 AMENDMENT Amendment applicable only if mailing occurred after Sept. 2, 1958, see section 89 (d) of Pub. L. 85-866, set out as a note under section 7502 of this title. RULES OF PRACTICE IN THE TAX COURT Service upon the parties, see rule 22, Appendix to this title. §7456. Administration of oaths and procurement of testimony. (a) In general. For the efficient administration of the functions vested in the Tax Court or any division thereof, any judge of the Tax Court, the clerk of the court or his deputies, as such, or any other employee of the Tax Court designated in writing for the purpose by the chief judge, may administer oaths, and any judge of the Tax Court may examine witnesses and require, by subpoena ordered by the Tax Court or any division thereof and signed by the judge (or by the clerk of the Tax Court or by any other employee of the Tax Court when acting as deputy clerk) — (1) the attendance and testimony of witnesses, and the production of all necessary returns, books, papers, documents, correspondence, and other evidence, from any place in the United States at any designated place of hearing, or (2) the taking of a deposition before any designated individual competent to administer oaths under this title. In the case of a deposition the testimony shall be reduced to writing by the individual taking the deposition or under his direction and shall then be subscribed by the deponent. (b) Production of records in the case of foreign corporations, foreign trusts or estates and nonresident alien individuals. The Tax Court or any division thereof, upon motion and notice by the Secretary or his delegate, and upon good cause shown therefor, shall order any foreign corporation, foreign trust or estate, or nonresident alien individual, who has filed a petition with the Tax Court, to produce, or, upon satisfactory proof to the Tax Court or any of its divisions, that the petitioner is unable to produce, to make available to the Secretary or his delegate, and, in either case, to permit the inspection, copying, or photographing of, such books, records, documents, memoranda, correspondence and other papers, wherever situated, as the Tax Court or any division thereof, may deem relevant to the proceedings and which are in the possession, custody or control of the petitioner, or of any person directly or indirectly under his control or having control over him or subject to the same common control. If the petitioner fails or refuses to comply with any of the provisions of such order, after reasonable time for compliance has been afforded to him, the Tax Court or any division thereof, upon motion, shall make an order striking out pleadings or parts thereof, or dismissing the proceeding or any part thereof, or rendering a judgment by default against the petitioner. For the purpose of this subsection, the term "foreign trust or estate" includes an estate or trust, any fiduciary of which is a foreign corporation or nonresident alien individual; and the term "control" is not limited to legal control. (c) Commissioners. The chief judge may from time to time by written order designate an attorney from the legal staff of the Tax Court to act as a commissioner in a particular case. The commissioner so designated shall proceed under such rules and regulations as may be promulgated by the Tax Court. The commissioner shall receive the same travel and subsistence allowances now or hereafter provided by law for commissioners of the United States Court of Claims. (Aug. 16, 1954, ch. 736, 68A Stat. 885.) CROSS REFERENCES Travel and subsistence expenses of employees of the Tax Court, see section 7471 (b) of this title. Traveling and maintenance expenses of commissioners of Court of Claims, see section 792 (b) of Title 28, Judiciary and Judicial Procedure. RULES OF PRACTICE IN THE TAX COURT Commissioners, see rule 48, Appendix to this title. Depositions, see rule 45, Appendix to this title. Depositions upon written interrogatories, see rule 46, Appendix to this title. Place of trial, requests and designation, see rule 26, Appendix to this title. Subpoenas, see rule 44, Appendix to this title. TAX COURT FORMS Subpoena, see Form 2, Appendix to this title. 87457. Witness fees. (a) Amount. Any witness summoned or whose deposition is taken under section 7456 shall receive the same fees and mileage as witnesses in courts of the United States. (b) Payment. Such fees and mileage and the expenses of taking any such deposition shall be paid as follows: (1) Witnesses for Secretary or his delegate. In the case of witnesses for the Secretary or his delegate, such payments shall be made by the Secretary or his delegate out of any moneys appropriated for the collection of internal revenue taxes, and may be made in advance. (2) Other Witnesses. In the case of any other witnesses, such payments shall be made, subject to rules prescribed by the Tax Court, by the party at whose instance the witness appears or the deposition is taken. (Aug. 16, 1954, ch. 736, 68A Stat. 886.) CROSS REFERENCES Fees and mileage of witnesses in courts of United States, see section 1821 of Title 28, Judiciary and Judicial Procedure. RULES OF PRACTICE IN THE TAX COURT Fees and mileage, see rule 60, Appendix to this title. § 7458. Hearings. Notice and opportunity to be heard upon any proceeding instituted before the Tax Court shall be given to the taxpayer and the Secretary or his delegate. If an opportunity to be heard upon the proceeding is given before a division of the Tax Court, neither the taxpayer nor the Secretary nor his delegate shall be entitled to notice and opportunity to be heard before the Tax Court upon review, except upon a specific order of the chief judge. Hearings before the Tax Court and its divisions shall be open to the public, and the testimony, and, if the Tax Court so requires, the argument, shall be stenographically reported. The Tax Court is authorized to contract (by renewal of contract or otherwise) for the reporting of such hearings, and in such contract to fix the terms and conditions under which transcripts will be supplied by the contractor to the Tax Court and to other persons and agencies. (Aug. 16, 1954, ch. 736, 68A Stat. 886.) § 7459. Reports and decisions. (a) Requirement. A report upon any proceeding instituted before the Tax Court and a decision thereon shall be made as quickly as practicable. The decision shall be made by a judge in accordance with the report of the Tax Court, and such decision so made shall, when entered, be the decision of the Tax Court. (b) Inclusion of findings of fact or opinions in report. It shall be the duty of the Tax Court and of each division to include in its report upon any proceeding its findings of fact or opinion or memorandum opinion. The Tax Court shall report in writing all its findings of fact, opinions, and memorandum opinions. (c) Date of decision. A decision of the Tax Court (except a decision dismissing a proceeding for lack of jurisdiction) shall be held to be rendered upon the date that an order specifying the amount of the deficiency is entered in the records of the Tax Court. If the Tax Court dismisses a proceeding for reasons other than lack of jurisdiction and is unable from the record to determine the amount of the deficiency determined by the Secretary or his delegate, or if the Tax Court dismisses a proceeding for lack of jurisdiction, an order to that effect shall be entered in the records of the Tax Court, and the decision of the Tax Court shall be held to be rendered upon the date of such entry. (d) Effect of decision dismissing petition. (e) Effect of decision that tax is barred by limitation. If the assessment or collection of any tax is barred by any statute of limitations, the decision of the Tax Court to that effect shall be considered as its decision that there is no deficiency in respect of such tax. (f) Findings of fact as evidence. The findings of the Board of Tax Appeals made in connection with any decision prior to February 26, 1926, shall, notwithstanding the enactment of the Revenue Act of 1926 (44 Stat. 9), continue to be prima facie evidence of the facts therein stated. (g) Penalty. For penalty for taxpayer instituting proceedings before Tax Court merely for delay, see section 6673. (Aug. 16, 1954, ch. 736, 68A Stat. 886.) RULES OF PRACTICE IN THE TAX COURT Computation by parties for entry of decision, see rule 50, Appendix to this title. Dismissal, see rule 21, Appendix to this title. § 7460. Provisions of special application to divisions. (a) Hearings, determinations, and reports. A division shall hear, and make a determination upon, any proceeding instituted before the Tax Court and any motion in connection therewith, assigned to such division by the chief judge, and shall make a report of any such determination which constitutes its final disposition of the proceeding. (b) Effect of action by a division. The report of the division shall become the report of the Tax Court within 30 days after such report by the division, unless within such period the chief judge has directed that such report shall be reviewed by the Tax Court. Any preliminary action by a division which does not form the basis for the entry of the final decision shall not be subject to review by the Tax Court except in accordance with such rules as the Tax Court may prescribe. The report of a division shall not be a part of the record in any case in which the chief judge directs that such report shall be reviewed by the Tax Court. (Aug. 16, 1954, ch. 736, 68A Stat. 887.) § 7461. Publicity of proceedings. All reports of the Tax Court and all evidence received by the Tax Court and its divisions, including a transcript of the stenographic report of the hearings, shall be public records open to the inspection of the public; except that after the decision of the Tax Court in any proceeding has become final the Tax Court may, upon motion of the taxpayer or the Secretary or his delegate, permit the withdrawal by the party entitled thereto of originals of books, documents, and records, and of models, diagrams, and other exhibits, introduced in evidence before the Tax Court or any division; or the Tax Court may, on its own motion, make such other disposition thereof as it deems advisable. (Aug. 16, 1954. ch. 736, 68A Stat. 887.) CROSS REFERENCES Management and disposition of records, see chapters 10 and 11 of Title 44, Public Printing and Documents. § 7462. Publication of reports. The Tax Court shall provide for the publication of its reports at the Government Printing Office in such form and manner as may be best adapted for public information and use, and such authorized publication shall be competent evidence of the reports of the Tax Court therein contained in all courts of the United States and of the several States without any further proof or authentication thereof. Such reports shall be subject to sale in the same manner and upon the same terms as other public documents. (Aug. 16, 1954, ch. 736, 68A Stat. 887.) § 7463. Provisions of special application to transferees. (1) For rules of burden of proof in transferee proceedings, see section 6902 (a). (2) For authority of Tax Court to prescribe rules by which a transferee of property of a taxpayer shall be entitled to examine books, records and other evidence, see section 6902 (b). (Aug. 16, 1954, ch. 736, 68A Stat. 888.) Sec. PART III.—MISCELLANEOUS PROVISIONS 7471. Employees. 7472. Expenditures. 7473. Disposition of fees. 7474. Fee for transcript of record. § 7471. Employees. (a) Appointment and compensation. The Tax Court is authorized in accordance with the civil service laws to appoint, and in accordance with the Classification Act of 1949 (63 Stat. 954; 5 U.S. C. chapter 21), as amended, to fix the compensation of, such employees as may be necessary efficiently to execute the functions vested in the Tax Court. (b) Expenses for travel and subsistence. The employees of the Tax Court shall receive their necessary traveling expenses, and expenses for subsistence while traveling on duty and away from their designated stations, as provided in the Travel Expense Act of 1949 (63 Stat. 166; 5 U. S. C. chapter 16). (c) Commissioners. For travel and subsistence allowances of commissioners of the Tax Court, see section 7456 (c). (Aug. 16, 1954, ch. 736, 68A Stat. 888.) § 7472. Expenditures. The Tax Court is authorized to make such expenditures (including expenditures for personal services and rent at the seat of Government and elsewhere, and for law books, books of reference, and periodicals), as may be necessary efficiently to execute the functions vested in the Tax Court. All expenditures of the Tax Court shall be allowed and paid, out of any moneys appropriated for purposes of the Tax Court, upon presentation of itemized vouchers therefor signed by the certifying officer designated by the chief judge. (Aug. 16, 1954, ch. 736, 68A Stat. 888.) §7474. Fee for transcript of record. The Tax Court is authorized to fix a fee, not in excess of the fee fixed by law to be charged and collected therefor by the clerks of the district courts, for comparing, or for preparing and comparing, a transcript of the record, or for copying any record, entry, or other paper and the comparison and certification thereof. (Aug. 16, 1954, ch. 736, 68A Stat. 888.) CROSS REFERENCES District court, subject to approval of Judicial Conference, to fix fees for transcripts of records, see section 753 (f) of Title 28, Judiciary and Judicial Procedure. RULES OF PRACTICE IN THE TAX COURT Preparation of record on review; costs, see rule 52, Appendix to this title. Subchapter D.-Court Review of Tax Court Decisions Sec. 7481. Date when Tax Court decision becomes final. 7482. Courts of review. 7483. Petition for review. 7484. Change of incumbent in office. 7485. Bond to stay assessment and collection. 7486. Refund, credit, or abatement of amounts disallowed. 7487. Cross reference. § 7481. Date when tax court decision becomes final. The decision of the Tax Court shall become final(1) Timely petition for review not filed. Upon the expiration of the time allowed for filing a petition for review, if no such petition has been duly filed within such time; or (2) Decision affirmed or petition for review dismissed. (A) Petition for certiorari not filed on time. Upon the expiration of the time allowed for filling a petition for certiorari, if the decision of the Tax Court has been affirmed or the petition for review dismissed by the United States Court of Appeals and no petition for certiorari has been duly filled; or (B) Petition for certiorari denied. Upon the denial of a petition for certiorari, if the decision of the Tax Court has been affirmed or the petition for review dismissed by the United States Court of Appeals; or (C) After mandate of Supreme Court. Upon the expiration of 30 days from the date of issuance of the mandate of the Supreme Court, if such Court directs that the decision of the Tax Court be affirmed or the petition for review dismissed. (3) Decision modified or reversed. If the Supreme Court directs that the decision of the Tax Court be modified or reversed, the decision of the Tax Court rendered in accordance with the mandate of the Supreme Court shall become final upon the expiration of 30 days from the time it was rendered, unless within such 30 days either the Secretary or his delegate or the taxpayer has instituted proceedings to have such decision corrected to accord with the mandate, in which event the |