The petition alleges, in substance, that the plaintiff is a corporation, and, being the owner of a certain number of cases of distilled spirits which it had produced on its premises, paid taxes thereon at the rate of $6.40 per proof gallon in the year 1919; that Congress, by an act approved February 11, 1925 (43 Stat. 860 [26 USCA § 150]), authorized the Commissioner of Internal Revenue to refund all taxes paid by the plaintiff in excess of $2.20 per proof gallon on such distilled spirits; that plaintiff filed claims for refund of said tax pursuant to the said act; and that the Commissioner of Internal Revenue allowed said refund claims in the amount that had been paid in excess of $2.20 per proof gallon (with certain small deductions not disputed by plaintiff and not necessary to be mentioned here), but refused to allow plaintiff interest on the amount allowed from the dates of the payment of the taxes to the date of the allowance of the said refund, such interest amounting to $46,923.23.
The defendant demurs to the petition on the ground that it does not state a cause of action, and the issue arising on the demurrer is whether the ruling of the commissioner in refusing to allow interest was correct.
The Revenue Act of 1924, §§ 1011, 1019, 43 Stat. 253, 342 (26 USCA § 149, and § 153 note), provided:
“Sec. 1011. Section 3220 of the Revised Statutes, as amended, is re-enacted ’without change, as follows:
“ ‘The Commissioner of Internal Revenue, subject to regulations prescribed by the Secretary of the Treasury, is authorized to remit, refund, and pay back all taxes erroneously or illegally assessed or collected, all penalties collected without authority, and all taxes that appear to be unjustly assessed or excessive in amount, or in any manner wrongfully collected. * * * ’ ”
“Sec. 1019. Upon the allowance of' a credit or refund of any internal-revenue tax erroneously or illegally assessed or collected, or of any penalty collected without authority, or of any sum which was excessive or in any manner wrongfully collected, interest shall be allowed and paid on the amount of such credit or refund at the rate' of 6 per centum per annum from the date such tax, penalty, or sum was paid to the date of the allowance of the refund. * * ”
The Act of Congress approved February 11, 1925, 43 Stat. 860, chap. 208 (26 USCA § 150), provided:
“That the Commissioner of Internal Revenue may, pursuant to the provisions of section 3220-, Revised Statutes, as amended, allow the claim of any distiller for the refund of taxes paid in excess of $2.20 per proof gallon on any distilled spirits produced and now owned by him and stored on the premises of the distillery where produced. * * * ”
The Revenue Act of 1926, § 1116(a), 44 Stat. 9 (26 USCA § 153 note), provided:
“Sec. 1116(a). Upon the allowance of a credit or refund of any internal-revenue tax erroneously or illegally assessed or collected, or of any penalty collected without authority, or of any sum which was excessive or in any manner wrongfully collected, interest shall be allowed and paid on the amount of such credit or refund at the rate of 6 per centum per annum from the date such tax, penalty, or sum was paid to the date of the allowance of the refund. * * * ”
The Revenue Act of 1928 provided in section 614(a), 26 USCA § 2614(a):
“See. 614(a). Interest shall be allowed and paid upon any overpayment in respect of any internal-revenue tax, at the rate of 6 per centum per annum. * * * ”
It is argued on behalf of the defendant that neither section 1019 of the act of 1924, section 1116 of the act of 1926, nor section 614 of the act of 1928, provided for the allowance of’interest in such a ease as the one now before the court, and we think it must be conceded that these statutory provisions standing alone would not entitle the plaintiff to the interest which it seeks to recover. It is plain that the original payment of the taxes included no “overpayment,” as required by the act of 1928, nor were the taxes so paid “erroneously or illegally assessed or collected, * * * or in any manner wrongfully collected,” as required in section 1019 of the act of 1924 and section 1116 of the act of 1926. The only specification of the act of 1926 which could possibly be construed as having any application is found in the word “excessive,” as applied to the tax. But we think it equally clear that this word did not in any way refer to matters which pertained to the propriety or equity of the tax, but simply to the question of whether or not it exceeded the amount which could be legally collected. Moreover, the language *978used in these two sections with reference to cases where interest can be allowed is substantially the same as the language of section 1011 of the act of 1924, amending section 3220 of the Revised Statutes, and prescribing conditions under which refunds could be allowed. Evidently Congress considered that the provisions of the section last referred to were not sufficient to authorize a refund in a case like the one at bar, and consequently the provision under which the refund herein was granted was enacted. In other words, Congress did not consider that the circumstances of the instant ease were included in any of the specifications of section 1011 of the act of 1924, and not being included therein the ease does not come under the provisions of section 1116 of the act of 1926 or section 1019 of the act of 1924.
It is contended, however, on the part of the plaintiff that by the terms of the act of February 11, 1925, which provided for the refund granted in this case, section 1116 of the Revenue Act of 1926, providing for interest, becomes applicable. Attention is called to the fact that the act of 1925 states that the refund may be made “pursuant to the provisions of section 3220, Revised Statutes, as amended,” and it is said that this language has brought the taxes herein involved within the scope of the interest allowance provided in the Revenue Act of 1924 and subsequent acts.
It is quite true that when a refund is allowed under the provisions of section 3220,-as amended, interest is also allowed under the provisions of section 1019 of the act of 1924 or of section 1116 of the act of 1926, but this is because the requirements for the allowance of interest under these sections are the same as the requirements for the allowance of a refund under section 3220, and not because the sections providing for interest made any reference to the section providing for refunds. We do not think the language last above quoted can be construed to mean that a ease like the one at bar should be held ■to be included within the provisions of; section 3220. This would be doing .too much violence to the language of that section which, as we have already shown, was not considered by Congress to include a case of the nature that we are now considering. The words “pursuant to the provisions of section 3220” mean, as we think, that the case should be treated by the Commissioner 'as if the provisions of section 3220 were applicable, but this does not lead us to the conclusion that the provisions of section 1019 of the act of 1924 or of section 1116 of the Revenue Act of 1926 were applicable also, especially when it is considered, as shown above, that their terms and specifications exclude a ease like the one at bar.
It is said that if this construction is applied, the words “pursuant to the provisions of section'3220” might as well have been left out, but this is not quite correct, as under section 3220 the commissioner was not only authorized to allow the claim for refund (which is all that the act of 1925 provided for), but also was authorized to pay back the taxes wrongfully collected.
Whatever may have been the application of the act of 1925 to section 1011 of the act of 1924, amending section 3220 of the Revised Statutes, we think it could have had no application to the statutory provisions with reference to interest. If these provisions with reference to interest had been contained in section 1011 above referred to, the argument would have had much more force, but they were in a different section, or in entirely different acts, and even if the act of 1925 can be said to have the effect to amend section 3220 (included in section 1011 of the act of 1924), we do not think it can be held to amend any of these provisions in other sections and other acts with reference to interest. The terms and specifications of the statutes with reference to interest still stand and are of such a nature as to exclude the claim of plaintiff made herein. - We are therefore of the- opinion that the act of 1925 in no way brought plaintiff’s claim" within the requirements made for the allowance of interest.
It follows that the demurrer must be sustained and the petition dismissed. It is so ordered.
BOOTH, Chief Justice, concurs.