Kelly

Appellant’s petition for rehearing states that this court erred in failing to review the question presented and raised by appellant’s specifications of error numbered I, II, and III; that this was the only question passed on by the District Court; and that the consideration thereof would not require an examination of the evidence. These specifications are as follows

“I. The Court erred in holding that a decision of the Board of Tax Appeals is res adjudicata and binding upon the bankruptcy court, the said decision of the Board of Tax Appeals not having become final before the adjudication in bankruptcy.

“II. The Court erred in not holding that the Bankruptcy Court can review the final decision of the Board of Tax Appeals.

“HI. The Court erred in disaffirming the order of the Special Referee and in not affirming the same for the reason that the claim of the United States Government disallowed by the said order of the said Special Referee is for taxes claimed to be due to the United States *542 and questions arising as to the amount or legality of any such taxes • are properly heard and determined by the Court in Bankruptcy, and the Court in Bankruptcy has jurisdiction of all such…

(dissenting).

In the majority opinion, reference is made to the abstract of record of proceedings had before the referee, and it is said: “We do not and cannot know *543 that the proceedings described in the abstract actually occurred.”

Both parties in the briefs have made arguments based on the transcript which includes the abstract specified. Neither party raised the point on which the opinion was based. The point took its origin from the bench without suggestion from or reference to either party, and in the face of extended argument and voluminous briefs based upon the statement of evidence contained in the abstract.

In Sommer v. Rotary Lift Co. (C.C.A.9) 66 F.(2d) 809 , in an equity appeal, there was no statement of evidence whatever, yet the court ordered the submission to be vacated, and a supplemental transcript to be filed containing a statement of the evidence. I think that we might well follow Sommer v. Rotary Lift Co., supra, and thereby avoid a diversity of decisions even in our own circuit.

I adhere to my former opinion, that the omission of authentication should be corrected, and therefore dissent from the majority opinion denying the petition for rehearing.