SECTION 212-SECTION REVISED

1

Based on title 28, U. S. C., 1940 ed., § 301 (Mar. 3, 1911, ch. 231, § 188, 36 Stat. 1143; Mar. 2, 1929, ch. 488, § 1, 45 Stat. 1475).

The first and third sentences were added to conform to the language of similar sections of this title relating to precedence. (See sections 45, 136, 172, 253, and 273 of this title.)

Other provisions of said section 301 of title 28, U. S. C., 1940 ed., are incorporated in sections 211, 213, 215, 293, and 296 of this title.

SECTION 213-SECTION REVISED

Based on title 28, U. S. C., 1940 ed., §§ 301, 301a (Mar. 3, 1911, ch. 231, § 188, 36 Stat. 1143; Feb. 25, 1919, ch. 29, §§ 2, 5, 40 Stat. 1156, 1157; Dec. 13, 1926, ch. 6, § 1, 44 Stat. 919; Mar. 2, 1929, ch. 488, § 1, 45 Stat. 1475; June 17, 1930, ch. 497, title IV, § 646, 46 Stat. 762; July 31, 1946, ch. 704, § 1, 60 Stat. 716).

This section consolidates those parts of sections 301 and 301a of title 28, U. S. C., 1940 ed., that relate to the tenure and salaries of the judges of the Court of Customs and Patent Appeals.

A provision for payment of salaries in monthly installments was omitted, since time of payment is a matter of administrative convenience. (See 20 Comp. Gen. 834.)

Other provisions of said section 301 of title 28, U. S. C., 1940 ed., are incorporated in sections 211, 212, 215, 293, and 296 of this title.

The remainder of said section 301a was omitted as unnecessary in view of sections 371 and 372 of this title providing for the resignation and retirement of judges. It related to the inclusion of service of judges rendered before March 2, 1929, for purposes of retirement. Changes were made in phraseology.

SECTION 214-SECTION REVISED

Based on title 28, U. S. C., 1940 ed., § 302 (Mar. 3, 1911, ch. 231, § 189, 36 Stat. 1143; Mar. 2, 1929, ch. 488, § 1, 45 Stat. 1475).

This section constitutes only a part of section 302 of title 28, U. S. C., 1940 ed.

Words "times and" were added to make explicit a power which the court exercises in the absence of statutory authority.

The part of said section 302 providing that the court shall always be open is incorporated in section 452 of this title.

The part of said section 302 providing for traveling expenses and the expenses of stenographic clerks is incorporated in sections 456 and 604 of this title.

Changes were made in phraseology.

SECTION 215-SECTION REVISED

Based on title 28, U. S. C., 1940 ed., § 302 (Mar. 3, 1911, ch. 231, § 189, 36 Stat. 1143; Mar. 2, 1929, ch. 488, § 1, 45 Stat. 1475).

Other provisions of said section 301 of title 28, U. S. C., 1940 ed., are incorporated in sections 211-213, 293, and 296 of this title. Changes were made in phraseology.

SECTION 216-SECTION REVISED

Based on title 28, U. S. C., 1940 ed., § 312 (Mar. 2, 1929, ch. 488, 3, 45 Stat. 1476).

Changes were made in phraseology.

Sec.

CHAPTER 11.

CUSTOMS COURT

251. Appointment and number of judges; offices. 252. Tenure and salaries of judges.

253. Duties of chief judge; precedence of judges. 254. Divisions; powers and assignments.

255. Publication of decisions.

PRECEDING SECTION 251

The "Board of General Appraisers" was designated "United States Customs Court" by Act May 28, 1926, ch. 411, § 1, 44 Stat. 669. General provisions concerning such court were incorporated in section 1518 of title 19, U. S. C., 1940 ed., Customs Duties, until amended by Act October 10, 1940, ch. 843, § 1, 54 Stat. 1101, adding a new section to the Judicial Code of 1911, when they were transferred to section 296 of title 28, U. S. C., 1940 ed. They are retained in title 28 by this revision.

In this connection former Congressman Walter Chandler said, "Among the major subjects needing study and revision are special courts, such as the Customs Court, which should be fitted into the judicial system." (See U. S. Law Weekly, Nov. 7, 1939.)

SECTION 251-SECTION REVISED

Based on title 28, U. S. C., 1940 ed., § 296 (Mar. 3, 1911, ch. 231, § 187 (a), as added Oct. 10, 1940, ch. 843, § 1, 54 Stat. 1101).

This section contains only a part of section 296 of title 28, U. S. C., 1940 ed. Other provisions of such section are incorporated in sections 252, 253, 254, 455, 1581, 2071, 2639, and 2640 of this title.

The provision that vacancies should be filled by appointment of the President and confirmed by the Senate was omitted as unnecessary in view of the language of the revised section.

Words "a court of record known as" were added. (See reviser's note under section 171 of this title.)

The term "chief judge" was substituted for "presiding judge."

(See

reviser's note under section 136 of this title.)

The provisions of such section 296 of title 28, U. S. C., 1940 ed., relating to assignment and powers of retired judges were omitted as covered by sections 294 and 296 of this title. Changes in phraseology were made.

SECTION 252-SECTION REVISED

Based on title 28, U. S. C., 1940 ed., § 296 (Mar. 3, 1911, ch. 231, §187 (a), as added Oct. 10, 1940, ch. 843, § 1, 54 Stat. 1101; July 31, 1946, ch. 704, § 1, 60 Stat. 716).

60852-47-4

This section contains a part of section 296 of title 28, U. S. C., 1940 ed. Other provisions of such section are incorporated in sections 251, 253, 254, 456, 1581, 2071, 2639, and 2640 of this title.

A provision exempting judges' salaries from section 1790 of the Revised Statutes was omitted, as such section was repealed by Act Aug. 26, 1935, ch. 689, § 1, 49 Stat. 864.

A provision for monthly salary payments was omitted since time of payment is a matter for administrative determination. Changes were made in phraseology.

SECTION 253-SECTION REVISED

Based on title 28, U. S. C., 1940 ed., § 296 (Mar. 3, 1911, ch. 231, § 187 (a), as added Oct. 10, 1940, ch. 843, § 1, 54 Stat. 1101).

This section contains a part of section 296 of title 28, U. S. C., 1940 ed. Other provisions of such section are incorporated in sections 251, 252, 254, 456, 1581, 2071, 2639, and 2640 of this title.

Provision respecting recommendations for appointment, promotions, or otherwise affecting such clerical force, was omitted as unnecessary in view of section 871 of this title.

The second paragraph is partly new and conforms with similar provisions of section 136 (e) of this title, relating to the chief judges of district courts.

The term "chief judge" was substituted for "presiding judge.” (See reviser's note under section 136 of this title.) Changes were made in phraseology and arrangement.

SECTION 254-SECTION REVISED

Based on title 28, U. S. C., 1940 ed., § 296 (Mar. 3, 1911, ch. 231, 187 (a), as added Oct. 10, 1940, ch. 843, § 1, 54 Stat. 1101).

This section contains a part of section 296 of title 28, U. S. C., 1940 ed. Other provisions of such section are incorporated in sections 251, 252, 253, 456, 1581, 2071, 2639, and 2640 of this title.

Words "when in the opinion of such division or judge the ends of justice so require," which followed the phrase "grant a rehearing or retrial." were omitted as surplusage.

The term "chief judge" was substituted for "presiding judge." (See reviser's note under section 136 of this title.)

The phrase "petitions for remission of additional duties" was added to the first paragraph at the suggestion of the court to conform to existing practice.

Reappraisement appeals are heard by a single judge and reviewed by a division. (See sections 2631 and 2636 of this title.)

The provision of section 296 of title 28, U. S. C., 1940 ed., that the presiding judge shall designate one of the three judges of a division to preside over such division was omitted as in conflict with section 253 of this title (also taken from section 296 of title 28 U. S. C., 1940 ed.), which provides that judges shall preside according to the seniority of their commissions. The latter provision is in accord with present practice.

Changes were made in arrangement and phraseology.

SECTION 255-SECTION REVISED

Based on section 1519 of title 19, U. S. C., 1940 ed., Customs Duties (June 17, 1930, ch. 497, title IV, § 519, 46 Stat. 739). Changes in phraseology were made.

See.

CHAPTER 13. TAX COURT

271. Appointment and number of judges.

272. Tenure and salaries of judges; removal.

273. Chief judge; designation.

274. Assignment of judges; hearings; divisions; quorum.

275. Offices.

276. Sessions.

277. Publication of opinions.

SECTION 271-SECTION REVISED

Based on sections 1100, 1102 (a) (b) of title 26, U. S. C., 1940 ed., Internal Revenue Code (Feb. 10, 1939, ch. 2, §§ 1100, 1102 (a) (b), 53 Stat. 158, 159; Oct. 21, 1942, ch. 619, title V, § 504 (a), 56 Stat. 957).

Section consolidates sections 1100 and 1102 (a) (b) of title 26, U. S. C., 1940 ed.

The official name, "The Tax Court of the United States," was changed to "United States Tax Court" to conform with the uniform style of titling other courts.

Words "solely on the grounds of fitness to perform the duties of the office," in said section 1102 (b) of title 26, U. S. C., 1940 ed., were omitted as unnecessary. Word "fitness" was not further defined, and the appointment and confirmation of one unfit are not to be presumed. Words "a court of record known as" were added. (See reviser's note under section 171 of this title.)

The provision of section 1100 of title 26, U. S. C., 1940 ed., Internal Revenue Code, that The Tax Court shall be continued as an inde

as unnecessary and inconsistent with provisions of this title respecting all other courts.

Changes were made in phraseology.

SECTION 272-SECTION REVISED

Based on section 1102 (c) (e) (f) (g) of title 26, U. S. C., 1940 ed., Internal Revenue Code (Feb. 10, 1939, ch. 2, § 1102 (c) (e) (f) (g), 53 Stat. 159; Oct. 21, 1942, ch. 619, title V, § 504 (a), 56 Stat. 957; July 31, 1946, ch. 704, § 1, 60 Stat. 716).

The provisions of section 1102 (e) fixing the terms of office of the sixteen members of the Board of Tax Appeals first taking office after June 1, 1926, to expire, as designated by the President at the time of nomination, four at the end of the sixth year, four at the end of the eighth year, four at the end of the tenth year, and four

completely executed.

The revised section continues the system of staggered terms thus

provided.

This section is inconsistent both as to tenure and removal, with the provisions of law relating to other courts.

An alternative section is therefore submitted for consideration as a substitute for section 272 if Congress concludes that judges of The Tax Court should enjoy the same tenure as judges of the Custome Court and that the removal procedure should be the same. The substitute section follows:

"§ 272. Tenure and salaries of judges

"Judges of the Tax Court shall hold office during good behavior and each shall receive a salary of $15,000 a year."

The disbarment provisions of section 1102 (g) of title 26, U. S. C., 1940 ed., were omitted as unnecessary, since, under section 2071 of this title, such court will make appropriate rules respecting admission to practice before it.

Provision for judge's continuance in office until his successor is appointed and qualifies was added.

A provision for monthly salary payments was omitted since time. of payment is a matter of administrative determination. Changes were made in phraseology.

SECTION 273-SECTION REVISED

Based on section 1103 (b) of title 26, U. S. C., 1940 ed., Internal Revenue (Feb. 10, 1939, ch. 2, § 1103 (b), 53 Stat. 159; Oct. 21, 1942, ch. 619, title V, § 504 (a), 56 Stat. 957).

This section is inconsistent with the provisions of law relating to all other courts. The following alternative section is submitted which will bring the organization of The Tax Court into conformity with other courts if Congress so desires:

"§ 273. Chief judge; precedence of judges

"(a) The judge of The Tax Court senior in commission shall be the chief judge thereof. He shall have precedence and preside at any session which he attends.

"(b) If the chief judge desires to be relieved of his duties as such while retaining his active status as judge of The Tax Court, he may so certify to the Chief Justice of the United States, and thereafter the judge of The Tax Court in active service next in precedence and willing to serve shall be designated by the Chief Justice as the chief judge of The Tax Court.

"(c) If the chief judge is temporarily unable to perform his duties as such, they shall be performed by the judge in active service who is present, able and qualified to act, and next in precedence.

"(d) Judges shall have precedence according to the seniority of their commissions; judges whose commissions bear the same date having precedence according to their ages."

Changes were made in phraseology.

SECTION 274—SECTION REVISED

Based on section 1103 (a) (c) (d) of title 26, U. S. C., 1940 ed., Internal Revenue Code (Feb. 10, 1939, ch. 2, § 1103 (a) (c) (d), 53 Stat. 159; Oct. 21, 1942, ch. 619, title V, § 504 (a), 56 Stat. 957).