1. Power of the United States Board of Tax Appeals to prescribe
rules for admission of attorneys and certified public accountants
to practice before it under the Revenue Act of 1924, § 900, 43
Stat. 253, is implied in the other powers conferred by the Act. P.
270 U. S.
120.
2. Where the application of a certified public accountant for
admission to practice before the Board of Tax Appeals was denied
after an
ex parte investigation,
held that he was
entitled to notice and a hearing before the Board upon the charges
on which the denial was based. P.
270 U. S.
123.
3. Mandamus will not lie summarily to compel the Board to enroll
an applicant who has not applied to the Board for a hearing on the
charges which caused its denial of his application. P.
270 U. S.
123.
55 App.D.C. 229, 4 F.2d 422, affirmed.
Error to a judgment of the Court of Appeals of the District of
Columbia refusing a mandamus to compel the
Page 270 U. S. 118
United States Board of Tax Appeals to admit to practice before
it a certified public accountant.
MR. CHIEF JUSTICE TAFT delivered the opinion of the Court.
H. Ely Goldsmith, a citizen of New York and qualified to
practice as a certified public accountant by certificate
Page 270 U. S. 119
issued under the laws of that state, filed a petition in the
Supreme Court of the District of Columbia, asking for a writ of
mandamus against the United States Board of Tax Appeals, created by
the Revenue Act of 1924, 43 Stat. 253, 336, Tit. 9, § 900, to
compel the Board to enroll him as an attorney, with the right to
practice before it, and to enjoin the Board from interfering with
his appearance before it in behalf of taxpayers whose interests are
there being dealt with.
The petition avers that the Board has published rules for
admission of persons entitled to practice before it, by which
attorneys at law admitted to courts of the United States and the
states, and the District of Columbia, as well as certified public
accountants duly qualified under the law of any state or the
District are made eligible. The applicant is required to make a
statement under oath, giving his name, residence, and the time and
place of his admission to the bar, or of his qualification as a
public accountant, and disclosing whether he has ever been
disbarred, or his right to practice as a certified accountant has
ever been revoked. The rules further provide that the Board may, in
its discretion, deny admission to any applicant, or suspend or
disbar any person after admission.
The petitioner says that, pursuant to these rules, he made
application showing that he was a public accountant of New York
duly certified, and that his certificate was unrevoked; that he
thereupon filed petitions for taxpayers before the Board, but that
he was then advised, September 5, 1924, by the Board that the
question of his admission to practice had been referred to a
committee for investigation; that in due course he would be
notified whether the committee desired him to appear before it, and
of its action in the premises, and that, on September 27 he
received notice that his application had been received, considered,
and denied. It does not appear that he made any further application
to the Board to be heard
Page 270 U. S. 120
upon the question of his admission, but filed his petition for
mandamus at once. In his petition, he denies the power of the Board
to make rules for admission of persons to practice before it.
Upon the filing of the petition, a judge of the Supreme Court of
the District ordered a rule against the Board to show cause. The
members of the Board answered the rule as if they were individual
defendants, and set out at considerable length the discharge of the
petitioner for improper conduct as examiner of municipal accounts
in the Office of State Comptroller of New York (
People ex rel.
Goldschmidt v. Travis, 167 App.Div. 475, 219 N.Y. 589), and
the rejection of the petitioner as an applicant for admission to
practice in the Department of the Treasury because of improper
advice to clients, as grounds upon which the committee and the
Board had denied his application to practice before it.
To this answer the petitioner replied, consenting to the
appearance of individual members of the Board as defendants,
denying some of the charges made, but averring that they were none
of them competent evidence on the issue presented, and were merely
hearsay, and that the action in New York and in the Treasury
Department was due to prejudice against him for doing his duty. To
this reply the defendants demurred. Upon the issue thus presented,
the Supreme Court dismissed the petition for mandamus.
The Court of Appeals of the District affirmed the judgment of
the Supreme Court (4 F.2d 422), and the case has been brought here
on error under § 250 of the Judicial Code as a case in which the
construction of a law of the United States is drawn in
question.
The chief issue made between the parties is whether the Board of
Tax Appeals has power to adopt rules of practice before it by which
it may limit those who appear before it to represent the interest
of taxpayers to persons
Page 270 U. S. 121
whom the Board deem qualified to perform such service and to be
of proper character.
The Board is composed of members appointed by the President by
and with the advice and consent of the Senate, with a chairman
appointed by the Board. It is charged with the duty of hearing and
determining appeals from the Commissioner of Internal Revenue on
questions of tax assessments for deficiencies in returns of
taxpayers. Notice and opportunity of be heard is to be given to the
taxpayer. Hearings before the Board are to be open to the public.
The Board may subpoena witnesses, compel the production of papers
and documents, and administer oaths. The duty of the Board and each
of its divisions into which it may be divided is to make a report
in writing of its findings of fact and decision in each case. In
any subsequent suit in court by the taxpayer to recover amounts
paid under its decision, its findings of fact shall be
prima
facie evidence. It is further provided by the Act that "the
proceedings of the Board and its divisions shall be conducted in
accordance with such rules of evidence and procedure as the Board
may prescribe." The last sentence in the title providing for the
Board is: "The Board shall be an independent agency in the
executive branch of the government."
We think that the character of the work to be done by the Board,
the
quasi-judicial nature of its duties, the magnitude of
the interests to be affected by its decisions, all require that
those who represent the taxpayers in the hearings should be persons
whose qualities as lawyers or accountants will secure proper
service to their clients and to help the Board in the discharge of
its important duties. In most of the executive departments in which
interests of individuals as claimants or taxpayers are to be passed
on by executive officers or Boards, authority is exercised to limit
those who act for them as attorneys to persons of proper character
and qualification to do so. Not infrequently,
Page 270 U. S. 122
statutory provision is made for requiring a list of enrolled
attorneys to which a practitioner must be admitted by the executive
officer or tribunal. Act July 7, 1884, 23 Stat. 236, 258, c. 334;
Act July 4, 1884, 23 Stat. 98, 101, c. 181, § 5; Act June 10, 1921,
42 Stat. 25, c. 18, § 311. In view of these express provisions, it
is urged that the absence of such authority in case of the Board of
Tax Appeals should indicate that it was not intended by Congress to
give it the power. Our view, on the contrary, is that so necessary
is the power and so usual is it that the general words by which the
Board is vested with the authority to prescribe the procedure in
accordance with which its business shall be conducted include as
part of the procedure rules of practice for the admission of
attorneys. It would be a very curious situation if such power did
not exist in the Board of Tax Appeals when, in the Treasury
Department and the office of the Commissioner of Internal Revenue,
there is a list of attorneys enrolled for practice in the very
cases which are to be appealed to the Board.
Our conclusion in this case is sustained by the decision of the
Supreme Judicial Court of Massachusetts in
Manning v.
French, 149 Mass. 391. That was a suit for tort against
members of the Court of Commissioners of Alabama Claims for
unjustly depriving an attorney of the privilege of practicing
before it. The court was given by statute power to make rules for
regulating the forms and mode of procedure for the court, and this
was held to include the power to make rules for the admission of
persons to prosecute claims before the court as agents or attorneys
for the claimants. It was pointed out in support of the
construction that claimants were not compelled to appear in person
to present their claims, as the taxpayers are not before the Board
of Tax Appeals. The fact that, in the
Manning case, the
body was called a court, and that here the Board was an executive
tribunal, does not make the decision inapplicable. The Court of
Alabama Claims was
Page 270 U. S. 123
certainly not a United States court under the third article of
the Constitution. It was, rather, a commission to aid the
fulfillment of an international award with judicial powers.
It is next objected that no opportunity was given to the
petitioner to be heard in reference to the charges upon which the
committee acted in denying him admission to practice. We think
that, the petitioner having shown by his application that, being a
citizen of the United States and a certified public accountant
under the laws of a state, he was within the class of those
entitled to be admitted to practice under the Board's rules, he
should not have been rejected upon charges of his unfitness without
giving him an opportunity by notice for hearing and answer. The
rules adopted by the Board provide that "the Board may, in its
discretion, deny admission, suspend or disbar any person." But this
must be construed to mean the exercise of a discretion to be
exercised after fair investigation, with such a notice, hearing,
and opportunity to answer for the applicant as would constitute due
process.
Garfield v. United States ex rel. Spalding, 32
App.D.C. 153, 158;
United States ex rel. Wedderburn v.
Bliss, 12 App.D.C. 485;
Philips v. Ballinger, 37
App.D.C. 46, 51.
The petitioner, as an applicant for admission to practice, was
therefore entitled to demand from the Board the right to be heard
on the charges against him upon which the Board has denied him
admission. But he made no demand of this kind. Instead of doing so,
he filed this petition in mandamus in which he asked for a writ to
compel the Board summarily to enroll him in the list of
practitioners, and to enjoin it from interfering with his
representing clients before it. He was not entitled to this on his
petition. Until he had sought a hearing from the Board and been
denied it, he could not appeal to the courts for any remedy, and
certainly not for mandamus to compel enrollment. Nor was there
anything in the
Page 270 U. S. 124
answer, reply, or demurrer which placed him in any more
favorable attitude for asking the writ.
This conclusion leads us to affirm the judgment of the Court of
Appeals.
Affirmed.