(concurring).
Section 600 (a), title 6, of the Revenue Act of 1918, approved February 24, 1919 (40 Stat. 1105 [26 USCA '§-245 note] provided : “That there ■ shall be levied and collected on all distilled-spirits now in bond or that have been or that may be hereafter produced in or imported into the United. States, except such distilled spirits as'.are subject to the tax provided in section 604, in lieu of the internal-revenue taxes now imposed thereon by law, a tax of $2.20 (or, if: withdrawn for beverage purposes or for use .in the manufacture or production of any. article used or intended, for use as a beverage, a tax of $6.40) on each proof gallon, or wine gallon when below proof, and a proportionate tax at a like rate on all fraction*979al parts of such proof or wine gallon, to he paid by the distiller or importer when withdrawn, and collected under the provisions of existing law.”
The plaintiff corporation was engaged in the business as a distiller of alcoholic liquors with principal office at Louisville, Ky., and was liable to the tax imposed as above mentioned. It was required to make returns and pay the tax in question, and was liable to the penalty of $1,000 provided in section 1308(a) of the aforementioned act (26 USCA § 1270) for failure to make a return required by law or regulation. It was further liable under section 1308(b) to a fine of not more than $10,000 or imprisonment for not more than one year, or both, for willfully refusing to pay any such tax, make such return, or supply such information at the time or times required by law^or regulation, or for any willful attempt in any manner to evade such tax. Under subdivision (c) of the same section, plaintiff was liable to a further penalty equal to the amount of the tax evaded or to the penalties provided in sections 3176 and 3256 of the Revised Statutes (26 USCA §§ 97, 98, 260).
In 1919 plaintiff owned and had stored on its premises, in accordance with law, 6,-455 cases of distilled spirits which had theretofore been produced by the plaintiff, as the distiller thereof, containing 19,220.4 proof gallons, upon which it was liable under the aforementioned section 600(a), to a tax at the rate of $6.40 per proof gallon. The tax so imposed on said distilled spirits was duly returned and paid by plaintiff during the months of March, April, May, and June, 1919, in the amount of $123,010.56.
On February 11, 1925, an act of Congress, 43 Stat. 860, quoted in part in the foregoing opinion, authorized the Commissioner of Internal Revenue, pursuant to the provisions of section 3220 of the Revised, Statutes as amended, to 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 owned by him and stored on the premises of the distillery where produced. In February, 1925, plaintiff made claim upon the Commissioner of Internal Revenue for the refund of the tax paid on the 19,220.4 proof gallons of spirits in excess of $2.20 per proof gallon, said claim for refund being-for $80,725.68, or such greater amount as might be legally refundable. July 13, 1925, the commissioner notified plaintiff that he had allowed the claim in the amount of $80,135.79 and rejected it in the amount of $589.89. That portion of the claim disallowed resulted from leakage, breakage, etc., which reduced the total number of proof gallons on hand. No claim is made for the disallowed portion. Treasury cheek for $80,135.79 was received by plaintiff with the commissioner’s notice of his action upon the claim.
On May 8, 1928, plaintiff owned 2,545 eases of distilled spirits which were then in a tax-paid warehouse operated in connection with and contiguous to an internal-revenue bonded warehouse upon the premises of plaintiff. The aforementioned eases contained 7,635 proof gallons of distilled spirits theretofore produced by the Associated Distilleries of Kentucky, a subsidiary of and owed by plaintiff. The tax of $6.40 per proof gallon imposed by section 600(a) of the Act of February 24, 1919, on the aforementioned 7,635 proof gallons had been duly returned and paid by the distiller thereof during the months of May and June, 1919, amounting to a total of $48,864.60.
On May 8, 1928, Congress passed another act, 45 Stat. 492, chap. 509 (26 USCA § 150a), providing: “That in addition to the authority contained in the Act entitled ‘Am Act to refund taxes paid on distilled spirits in certain cases,’ approved February 11, 1925, the Commissioner of Internal Revenue may allow the claim of the owner (whether the distiller or his successor or other person) for the refund of taxes paid (whether by such owner or any other person) in excess of $2.20 per proof gallon on any domestic distilled spirits which are now in a tax-paid warehouse operated in connection with and contiguous to an internal-revenue bonded warehouse, if proof satisfactory to the Commissioner of Internal Revenue is furnished of the ownership and identity of the distilled spirits as to which the refund is claimed, and of the amount of tax paid thereon.”
May 8, 1928, plaintiff made claim upon the commissioner for the refund of $32,067, or such greater amount as might be legally refundable, being the tax alleged to have been paid on the 7,635 proof gallons of distilled spirits in excess of $2.20 per proof gallon. August 9, 1928, the commissioner notified plaintiff that he had allowed the claim for $31,903.83 and had rejected it in the amount of $163.17, the latter amount being that portion of the claim relating to the quantity of distilled spirits missing. Plaintiff received treasury cheek for $31,903.83. No question is raised as to that portion of the claim which the commissioner rejected.
Section 3220 of .the Revised Statutes, as *980amended by section 1011 of the Revenue act of 1924 (26 USCA § 149), and section 1111 of the Revenue Act of 1926 (26 USCA § 149), authorized the commissioner, subject to regulations prescribed by .the Secretary of the Treasury, to refund and pay back all taxes erroneously or illegally assessed or collected, .all penalties collected without authority, and all taxes unjustly assessed or excessive in amount, or in any manner wrongfully collected. The provisions of law with reference to the payment of interest upon taxes refunded at the time both of the aforementioned acts of Congress of 1925 and 1928 became effective were contained in section 1019 of the Revenue Act off 1924 and section 1116 of the Revenue Act of 1926, which provided for the payment of interest upon the 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.
The reference in the Act of February 11, 1925, authorizing the commissioner to allow the claim of any distiller for a refund of taxes paid in excess of a certain amount, to the provisions of section 3220 of the Revised Statutes was for the purpose of making it certain that in the preparation, presentation, and investigation of the claim the Commissioner of Internal Revenue should have authority to proceed as in other claims for the refund of taxes in accordance with regulations duly made. In other words, Congress recognized that there already existed under section 3220 an established practice in the Treasury Department with reference to the preparation and presentation of claims for refund and with reference to investigations and hearings thereon, and the commissioner was authorized to follow the provisions of section 3220 relating to refunds of all taxes in allowing the claim of any distiller for the refund of the taxes authorized in the acts of 1925 and 1928. The amount of tax which Congress by the acts of 1925 and 1928 authorized the commissioner to refund was a tax levied by Congress, legally collected, and was not excessive in amount. From the time the tax became due under the statute, it belonged to the United States and at no time after it was paid was it wrongfully withheld. The government was at no time using funds that belonged to the plaintiff. The underlying purpose of the allowance of interest upon a refund of a tax is that the government has collected from the taxpayer amounts in excess of those authorized by the taxing acts and has had the use of money that did not belong to it. The reason for the allowance of interest did not exist in respect of the tax in question and in the absence of specific authorization for the payment of interest upon the refund of amounts which had been legally collected and at all times belonged to the United States, we should not read into the two acts in question the general provisions of law with reference to the payment of interest upon a tax erroneously or illegally assessed or collected. Prior to the Revenue Act of 1921, approved November 23, 1921 (42 Stat. 227), no interest was payable upon taxes overpaid and refunded. By that act interest on over-payments was allowed under certain conditions. The Revenue Act of 1924, 43 Stat. 253, in section 1019 (26 USCA § 153 note), contained a provision for the payment of interest from the date of overpayment to the date of allowance of refund. The Revenue Act of 1926, 44 Stat. 9, in section 1116 (26 USCA § 153 note), again restricted the allowance of interest upon refunds and credits by paying interest upon amounts wrongfully withheld by the government during the time when the taxpayer was not indebted to the government for a like amount and also shortened the period during which the taxpayer could receive interest upon a claim. See Riverside & Dan River Cotton Mills v. United States, 37 F.(2d) 965, 69-Ct. Cl. 70), and George U. Hind v. United States, 41 F. (2d) 892, 70 Ct. Cl. 288. Section 614 of the Revenue Act of 1928, approved May 29,1928 (26 USCA § 153 note; § 2614 and note), continued the provisions of the 1926 act with reference to the payment of interest on credits and refunds but changed the date to which interest on a refund should be paid from the date of the allowance thereof to a date preceding the date of the refund check by not more than thirty days. By reason of the changes in the interest provisions, subdivision (c) of section 1116 of the Revenue Act of 1926 made that section applicable to any refund paid and to any credit taken on or after the date of the enactment of that act even though such refund or cred-7 it was allowed prior to such date, and subdivision (d) of section 614 of the Revenue Act of 1928 contained a similar provision with reference to the provisions of that section. Subdivision (c) of the 1926 act and subdivision (d) of the 1928 act have no bearing on the question here. They were inserted to guard against the computation of interest under a prior statute because of certain action taken by the Commissioner of Internal Revenue. George U. Hind v. U. S., supra.
*981The United States is not liable for interest except by its consent. The allowance of interest against the government is a matter of grace, manifestly restrictive, is never to be presumed, and should not be allowed unless clearly and specifically authorized. We may not, therefore, presume that Congress in authorizing the refund of a portion of a tax duly imposed and legally collected by a special act which makes no mention of interest, intended that other provisions of law for the payment of interest upon taxes erroneously and illegally collected and wrongfully withheld should apply. Neither may we read into the special acts of 1925 and 1928 for the benefit of distillers the general-interest provisions with respect to illegal collections merely because such special acts refer to section 3220, Revised Statutes, as the authority by which the commissioner may allow the refund.
Congress authorized the commissioner to follow the provisions of section 3220 in allowing the claim for a refund of a portion of a tax paid on distilled spirits on hand at the date of the enactment of those acts. The fact that he was authorized to proceed in conformity with section 3220 indicates that Congress recognized that in authorizing the repayment of a portion of the tax in question it was making an exception to the general rule with reference to refunding taxes, and it inserted the words “pursuant to the provisions of section 3220, Revised Statutes, as amended,” to permit the commissioner to invoke the provisions of that section and no other, in connection with whatever action he might take in considering and allowing the claim. If we read into the acts of 1925 and 1928 the general-interest provisions of the internal revenue laws, it would seem that we would also be compelled to read into those acts the limitation provisions as well, for no exception in this regard was made. In that event the refunds upon which interest is here claimed were barred and therefore illegal.
I am of opinion that Congress simply intended to return to distillers the difference between the tax of $6.40 per gallon levied and collected upon liquor withdrawn and held for sale for beverage purposes, and the lesser tax of $2.20 levied and collected upon liquor held in bond and not yet withdrawn for beverage purposes or for the manufacture of any article used or intended for use as a beverage, without interest thereon. The reason for the return of a portion of the tax levied, assessed, and paid was because the liquor upon which levied and collected could not, because of the eighteenth amendment to the Constitution, be sold for beverage purposes. It was purely a voluntary act, and we may not assume that Congress intended to return more money 'than it specifically authorized.