The opinion of the court was delivered by: FORMAN
Plaintiff, Borden Company, has sued the United States for a refund of $ 2,958.30, representing taxes paid on distilled spirits purchased during January and February of 1952. In its complaint it alleged that during the quarter January 1 to March 31, 1952 it used 311.44 gallons of distilled spirits in the manufacture of vanilla flavor and rum bisque ice cream, nonbeverage products within the meaning of the Internal Revenue Code; that it had qualified under the law to recover the tax so paid and that on June 6, 1952 it mailed its claim for refund or 'drawback' in the said sum to the District Supervisor, Alcohol Tax Unit, Baltimore, Maryland, which claim was received within three months next succeeding the quarter for which the 'drawback' was claimed, but that the defendant has refused to pay the claim.
The defendant has answered, in effect denying that a valid claim was filed.
This court has jurisdiction over this suit under 28 U.S.C. §§ 1340, 1346 and 1402.
The law governing such refunds is found in the Internal Revenue Code of 1939 as amended, 26 U.S.C. §§ 3250 and 3772 (1952):
' § 3250. Tax * * * (l) Manufacturers or producers of designated nonbeverage products -- (1) in general.
'Any person using distilled spirits produced in a domestic registered distillery or industrial alcohol plant and fully tax-paid in the manufacture or production of medicines, medicinal preparations, food products, flavors, or flavoring extracts which are unfit for beverage purposes, upon payment of a special tax per annum, shall be eligible for drawback at the time when such
'3772. Suits for refund -- (a) of such products and as hereinafter provided for.
'In the case of distilled spirits tax-paid and used as provided in this subsection, a drawback shall be allowed --
'Such drawback shall be due and payable quarterly upon filing of a proper claim with the Secretary. No claim under this subsection shall be allowed unless filed with the Secretary within the three months next succeeding the quarter for which the drawback is claimed.'
' § 3772 Suits for refund -- (a) Limitations (1) Claim.
'No suit or proceeding shall be maintained in any court for the recovery of any internal revenue tax alleged to have been erroneously or illegally assessed or collected, or of any penalty claimed to have been collected without authority, or of any sum alleged to have been excessive or in any manner wrongfully collected until a claim for refund or credit has been duly filed with the Commissioner, according to the provisions of the law in that regard and the regulations of the Secretary established in pursuance thereof.'