(dissenting).
The correct decision in this case is not as plain as in Erie Railroad Company v. United States, Ct.Cl., 156 F.Supp. 908, but, even so, I do not think it was the intent of Congress to permit a refund of a tax on account of a casualty occurring after the alcohol had been withdrawn from bond and the tax had been paid.
Most of the occasions enumerated in section 3113(a) of the Internal Revenue Code of 1939, permitting a remission or refund of the tax, are things occurring before withdrawal from bond. For instance, “shrinkage”, “leakage”, “unavoidable cause during distillation, redistillation, denaturation”; all these of course, occur prior to withdrawal.
Then the statute mentions “withdrawal”. I take it this means withdrawal from bond, and refers to a loss in this process. “Piping”, I suppose, refers to transmission of the alcohol by pipe from distillery to warehouse or within one or the other. “Storage” must mean storage in the warehouse. “Transfer” and “shipment” I would suppose mean transfer and shipment before withdrawal from Government control. After withdrawal and the payment of the tax thereon, the Government’s interest in the alcohol ceases. What happens to it thereafter is no concern of the Government.
I can conceive of no reason why the Congress should have intended to direct a refund of the tax, if the alcohol was destroyed after it had passed out of the hands of the Government and into the uncontrolled possession of the owner.
I think section 3113(a) should be construed to refer to events happening before withdrawal from bond and payment of the tax.
I respectfully dissent.