concurrence">

CONCURRING OPINION

Donlon, Judge:

I concur in the result but not in the opinion. This case can be decided on the facts. In my opinion it should be so decided. The question here is, as it was in Clayburgh Bros. v. United States, 65 Treas. Dec. 1636, Reap. Dec. 3262, one of fact to be decided on the evidence.

Mr. Baird, the liquidator in the collector’s office in Denver, testified on June 21, 1963, that on November 3, 1961, he had put plaintiff’s notice, Form 4301, “into a folder or binder which is on the counter in the Collector’s office” and that this was the folder for plaintiff. On cross-examination he admitted that sometimes he made mistakes, and there is credible evidence in the record of instances in the Denver office that corroborates the frequency of errors there in misplacing documents.

Plaintiff’s witnesses were explicit in their testimony that, although they regularly .received many documents in their “book” in the Denver customhouse, they never had received the Form 4301 which is in issue. They did not rest, as did Mr. Baird, on a categorical affirmation, but testified in detail as to their search for the document and as to their *85complaints at the Denver customhouse relative to nonreceipt of this and of other papers.

When there are conflicting statements in the proofs adduced, as there are here, the court as trier of fact has the duty to find what the facts are. Weighing the testimony of record, I find the testimony of plaintiff’s witnesses the more convincing. The facts, taken as a whole, do not establish receipt of Form 4301 after deposit in the plaintiff’s customhouse box, notwithstanding Mr. Baird’s seemingly remarkable memory for such minutiae after a lapse of more than 19 months.

I would add only that I do not interpret the statute or regulations as requiring delivery to plaintiff “without the intervention of another,” as recited in the lexicographic excerpt quoted by my colleague. In my opinion, the pickup of customs documents from a broker’s personal customhouse box by any one of his employees regularly visiting the customhouse for that purpose constitutes delivery to the broker. Here plaintiff has been careful, and rightly so, to show by the testimony of such employees that they never found this particular Form 4301 in plaintiff’s “book” in the Denver customhouse.

On the evidentiary record, I concur in the judgment order.

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