(a) Appointment. An Examiner, appointed as provided by section 11 of the Administrative Procedure Act, 60 Stat. 244 (5 U.S.C. 1010), shall conduct proceedings upon complaints for the disbarment or suspension of attorneys, certified public accountants, or enrolled agents. Among

(b) Powers of Examiner. other powers, the Examiner shall have authority, in connection with any disbarment or suspension proceeding assigned or referred to him, to do the following:

(1) Administer oaths and affirmations;

(2) Make rulings upon motions and requests, which rulings may not be appealed from prior to the close of a hearing except, at the discretion of the Examiner, in extraordinary circumstances;

(3) Determine the time and place of hearing and regulate its course and conduct;

(4) Adopt rules of procedure and modify the same from time to time as occasion requires for the orderly disposition of procedings;

(5) Rule upon offers of proof, receive relevant evidence, and examine witnesses;

(6) Take or authorize the taking of depositions;

(7) Receive and consider oral or written argument on facts or law;

(8) Hold or provide for the holding of conferences for the settlement or simplification of the issues by consent of the parties;

(9) Perform such acts and take such measures as are necessary or appropriate to the efficient conduct of any proceeding; and

(10) Make initial decisions.

attorney, certified public accountant, or enrolled agent. Hearings shall be stenographically recorded and transcribed and the testimony of witnesses shall be taken under oath or affirmation. Hearings will be conducted pursuant to section 7 of the Administrative Procedure Act, 60 Stat. 241 (5 U.S.C. 1006).

(b) Failure to appear. If either party to the proceeding fails to appear at the hearing, after due notice thereof has been sent to him, he shall be deemed to have waived the right to a hearing and the Examiner may make his decision against the absent party be default. § 10.66

Evidence.

(a) In general. The rules of evidence prevailing in courts of law and equity are not controlling in hearings on complaints for the disbarment or suspension of attorneys, certified public accountants, and enrolled agents. However, the Examiner shall exclude evidence which is irrelevant, immaterial, or unduly repetitions.

(b) Depositions. The deposition of any witness taken pursuant to § 10.67 may be admitted.

(c) Proof of documents. Official documents, records, and papers of the Internal Revenue Service and the Office of Director of Practice shall be admissible in evidence without the production of an officer or employee to authenticate them. Any such documents, records, and papers may be evidenced by a copy attested or identified by an officer or employee of the Internal Revenue Service or the Treasury Department, as the case may be.

(d) Exhibits. If any document, record, or other paper is introduced in evidence as an exhibit, the Examiner may authorize the withdrawal of the exhibit subject to any conditions which he deems proper.

(e) Objections. Objections to evidence shall be in short form, stating the grounds of objection relied upon, and the record shall not include argument thereon, except as ordered by the Examiner. Rulings on such objections shall be a part of the record. No exception to the ruling is necessary to preserve the rights of the parties.

[31 F.R. 10773, Aug. 13, 1966, as amended at 35 F.R. 13206, Aug. 19, 1970]

§ 10.67 Depositions.

Depositions for use at a hearing may, with the written approval of the Examiner, be taken by either the Director of Practice or the respondent or their duly authorized representatives. Depositions may be taken upon oral or written interrogatories, upon not less than 10 days' written notice to the other party before any officer duly authorized to administer an oath for general purposes or before an officer or employee of the Internal Revenue Service who is authorized to administer an oath in internal revenue matters. Such notice shall state the names of the witnesses and the time and place where the depositions are to be taken. The requirement of 10 days' notice may be waived by the parties in writing, and depositions may then be taken from the persons and at the times and places mutually agreed to by the parties. When a deposition is taken upon written interrogatories, any cross-examination shall be upon written interrogatories. Copies of such written interrogatories shall be served upon the other party with the notice, and copies of any written cross-interrogation shall be mailed or delivered to the opposing party at least 5 days before the date of taking the depositions, unless the parties mutually agree otherwise. A party upon whose behalf a deposition is taken must file it with the Examiner and serve one copy upon the opposing party. Expenses in the reporting of depositions shall be borne by the party at whose instance the deposition is taken. § 10.68 Transcript.

In cases where the hearing is stenographically reported by a Government contract reported, copies of the transcript may be obtained from the reporter at rates not to exceed the maximum rates fixed by contract between the Government and the reporter. Where the hearing is stenographically reported by a regular employee of the Internal Revenue Service, a copy thereof will be supplied to the respondent either without charge or upon the payment of a reasonable fee. Copies of exhibits introduced at the hearing or at the taking or depositions will be supplied to the parties upon the payment of a reasonable fee (5 U.S.C. 140).

§ 10.69 Proposed findings and conclusions.

Except in cases where the respondent has failed to answer the complaint or where a party has failed to appear at the hearing, the Examiner, prior to making his decision, shall afford the parties a reasonable opportunity to submit proposed findings and conclusions and supporting reasons therefor.

§ 10.70 Decision of the Examiner.

As soon as practicable after the conclusion of a hearing and the receipt of any proposed findings and conclusions timely submitted by the parties, the Examiner shall make the initial decision in the case. The decision shall include (a) a statement of findings and conclusions, as well as the reasons or basis therefor, upon all the material issues of fact, law, or discretion presented on the record, and (b) an order of disbarment, suspension, or reprimand or an order of dismissal of the complaint. The Examiner shall file the decision with the Director of Practice and shall transmit a copy thereof to the respondent or his attorney of record. In the absence of an appeal to the Secretary of the Treasury, or review of the decision upon motion of the Secretary, the decision of the Examiner shall without further proceedings become the decisions of the Secretary of the Treasury 30 days from the date of the Examiner's decision.

§ 10.71

Appeal to the Secretary.

Within 30 days from the date of the Examiner's decision, either party may appeal to the Secretary of the Treasury. The appeal shall be filed with the Director of Practice in duplicate and shall include exceptions to the decision of the Examiner and supporting reasons for such exceptions. If an appeal is filed by the Director of Practice, he shall transmit a copy thereof to the respondent. Within 30 days after receipt of an appeal or copy thereof, the other party may file a reply brief in duplicate with the Director of Practice. If the reply brief is filed by the Director, he shall transmit a copy of it to the respondent. Upon the filing of an appeal and a reply brief, if any, the Director of Practice shall transmit the entire record to the Secretary of the Treasury.

§ 10.72 Decision of the Secretary.

On appeal from or review of the initial decision of the Examiner, the Secretary of the Treasury will make the agency decision. In making his decision the Secretary of the Treasury will review the record or such portions thereof as may be cited by the parties to permit limiting of the issues. A copy of the Secretary's decision shall be transmitted to the respondent by the Director of Practice.

§ 10.73 Effect of disbarment or suspension; surrender of card.

In case the final order against the respondent is for disbarment, the respondent shall not thereafter be permitted to practice before the Internal Revenue Service unless and until authorized to do so by the Director of Practice pursuant to § 10.75. In case the final order against the respondent is for suspension, the respondent shall not thereafter be permitted to practice before the Internal Revenue Service during the period of suspension. If an enrolled agent is disbarred or suspended, he shall surrender his enrollment card to the Director of Practice for cancellation, in the case of disbarment, or for retention during the period of suspension.

§ 10.74 Notice of disbarment or suspen

sion.

(a) Availability. There are made available to public inspection at the Office of the Commissioner of Internal Revenue the roster of all persons enrolled to practice and the roster of all persons disbarred or suspended from practice. Other records may be disclosed upon specific request, in accordance with the disclosure regulations of the Internal Revenue Service and the Office of the Secretary.

(b) Disciplinary procedures. A request by a practitioner that a hearing in a disciplinary proceeding concerning him be public, and that the record thereof be made available for inspection by interested persons may be granted if agreement is reached by stipulation in advance to protect from disclosure tax information which is confidential, in accordance with the applicable statutes and regulations.

§ 10.91 Effective date of regulations.

The regulations in this part shall become effective on the 31st day after the date of publication in the FEDERAL REGISTER and shall supersede all prior regulations related to practice before the Internal Revenue Service.

Any proceeding for the disbarment or suspension of an attorney, certified public accountant, or enrolled agent, instituted but not closed prior to the effective date of these revised regulations, shall not be affected by such regulations, except that any such proceeding based solely on conduct which would not justify disbarment or suspension under the provisions of the part as revised shall be dismissed. Any proceeding for disbarment or suspension based on conduct engaged in prior to the effective date of these regulations may be instituted subsequent to such effective date, provided that such conduct would continue to justify disbarment or suspension under the provisions of this part as revised.

As used in this part, the following terms shall have the following meanings:

(a) "Act" means the Randolph-Sheppard Vending Stand Act, Act of June 20, 1936, c. 638, 49 Stat. 1559, as amended by the Act of August 3, 1954, c. 655, 68 Stat. 652, 663 (20 U.S.C. 107-107f).

(b) "Bureau" means any bureau, office, or corporation of the Treasury Department and such comparable administrative units as may hereafter be created or made a part of the Department. Where the Department is in control of the maintenance operation, and protection of Federal property, but such

property is not operated by a bureau, the Office of Administrative Assistant Secretary of the Treasury shall exercise the power and responsibility of a bureau under this part with regard to such property.

(c) "Federal property" means any building, land or other real property owned, leased, or occupied by any department or agency of the United States or any instrumentality owned by the United States, or by any department or agency of the District of Columbia or any territory or possession of the United States.

(d) "Property" or "property location" means any real property of which the Treasury Department or a bureau thereof is in control of the maintenance, operation and protection.

(e) "Permit" means the official authorization given by a bureau on behalf of the Treasury Department, whereby the State licensing agency is authorized to place a vending stand (or stands) to be operated by a licensed blind person (or persons).

(f) "Denial of a permit" means the termination of a permit or the refusal to issue a permit.

(g) "Vending stand” means:

(1) Such shelters, counters, shelving, display and wall cases, refrigerating apparatus, and other appropriate auxiliary equipment as are necessary for the vending of such articles as may be approved by the State licensing agency and the bureau.

(2) Manual or coin-operated vending machines or similar devices for vending such articles.

(h) "State licensing agency" means the State agency designated by the Director of the Office of Vocational Rehabilitation pursuant to the Act to issue licenses to blind persons for the operation of vending stands on Federal and other properties. The term "State" includes, in addition to the 50 States of the Union, the District of Columbia, the Virgin Islands, Puerto Rico, and Guam.

(1) "Licensed blind person” means a blind person who is licensed by a State licensing agency to operate a vending stand on Federal or other property.

§ 11.3 Department policy on permits for vending stands.

(a) In accordance with the provisions of the Randolph-Sheppard Vending

Stand Act, it will be the policy of this Department with respect to property of which it is in control of the maintenance, operation, and protection, to issue a permit authorizing the operation of such vending stands without charge for space or necessary utilities as, in the opinion of the State licensing agency, are suitable for operation by a licensed blind person and for which the State licensing agency makes application.

(b) The application of a State licensing agency for a permit may be denied or a permit revoked if the Administrative Assistant Secretary of the Treasury determines that the interest of the United States would be adversely affected or this Department unduly inconvenienced by its issuance or continuance. Loss of revenue by reason of granting a rent free permit for operation of a vending stand by a licensed blind person shall not be a basis for denying such permits as unduly inconveniencing this Department or adversely affecting the interest of the United States. If a bureau believes factors other than loss of revenue justify denial or revocation of permit the matter should be referred to the Administrative Assistant Secretary of the Treasury for decision, together with the recommendation of the head of the

bureau.

(c) A permit shall not be issued without first consulting the appropriate State licensing agency, unless express permission is given by the Administrative Assistant Secretary of the Treasury.

(d) Articles shall not be offered for sale on property after issuance of permit which would compete with articles approved for sale under the permit, except that this prohibition shall not apply to (1) sale by cafeterias or restaurants of articles of a type considered as food and usually sold as part of a meal, (2) sales by Coast Guard exchanges, and (3) sale of articles by vending machines. The income from such vending machines which are located within reasonable proximity to and are in direct competition with a licensed vending stand shall be assigned to the licensed blind operator. If a vending machine vends articles of a type authorized by the permit and is so located that it attracts customers who would otherwise patronize the vending stand, such machine shall be con

sidered in reasonable proximity to and in direct competition with the stand.

(e) In the exercise of any function of this Department in connection with planning for construction, alteration, or remodeling of a building which is or will become Federal property, provision shall be made for suitable space for vending stand or stands, if operations of one or more on such property will be feasible. This shall include facilities necessary to the operation of the stand, such as adequate electrical wiring and outlets, heating, plumbing and ventilation. The bureau will consult the State licensing agency in carrying out this provision.

(f) The following factors shall be considered in establishing the location for the vending stand:

(1) It shall be conveniently located with reference to prospective patrons. (2) It shall be located so as not to create hazard through congestion at, or in entrances, lobbies, corridors, or elevators.

(3) It shall be located and designed so it will not detract from appearance of building.

(4) It shall be located so as to facilitate delivery of supplies and removal of trash and garbage.

(5) It shall be located where most profitable operation may be expected. The bureau shall consult with the State licensing agencies in applying the foregoing criteria.

§ 11.4

Permits.

(a) Issuance of the permit shall be conditioned upon the vending stand meeting specified standards, including standards relating to appearance, safety, sanitation, and efficiency of operation. Due regard shall be given to provisions of laws and regulations for the public welfare which are applicable or would be applicable, if the property involved were not under jurisdiction of the Federal Government.

(b) The permit shall specify types of articles which may be sold. The articles may include newspapers, periodicals, confections, tobacco products, articles dispensed automatically or in containers or wrapping in which they are placed before receipt by vending stand, and such other related articles as may be approved by the State licensing agency and the