3309 of the United States Revised Statutes, to inquire and determine whether the distiller has accounted for all the grain or molasses used and all the spirits produced by him in the preceding month, and also whether he has used any grain or molasses in excess of the capacity of his distillery, as estimated according to law. In making this inquiry and determination, the quantity of grain or molasses used will be ascertained from the distiller's return, the storekeeper's monthly abstract on Form No. 88, and such other evidence as is available; the quantity of grain or molasses, in bushels and pounds or gallons, on hand in mash at the beginning of the month, will be added to that put into mash during the month, and from the total will be deducted the quantity on hand in mash at the end of the month; and, in computing the bushels of grain or gallons of molasses used from the gallons of mash or beer brewed or fermented, the same course will be pursued, namely, the mash or beer on hand at the beginning of the month will be brought forward, and added to the production of the month, and the quantity on hand at the end of the month will be deducted therefrom; and the remainder only, in either case, will be considered as the quantity of material used during the month. Collectors will instruct and require storekeepers, in making their monthly abstracts, Form No. 88, to enter therein the grain or molasses used and the mash or beer made therefrom, in accordance with the above, and with the instructions contained in Series 6, No. 7, page 30, (latest print,) and to forward at once to this office, Forms 88, for the months of July and August last past, amended in these respects. Collectors will also require distillers to report, on Form 14, the quantity of mash or beer used, instead of the quantity made, as now required. A revised Form 88 is in course of preparation. D. D. PRATT, Commissioner. CIRCULAR LETTER No. 38. To Collectors, concerning the Method of Determining whether Material has been used by a Distiller in Excess of Capacity. 1877. DEPARTMENT No. 29. Internal Revenue. TREASURY DEPARTMENT, Office of Internal Revenue, It is made the duty of the Commissioner of Internal Revenue by the Revised Statutes, section 3309, upon the receipt of the return of the distiller in each month, to proceed to inquire and determine whether the distiller has accounted for all the grain or molasses used, and all the spirits produced by him in the preceding month, and also whether he has used any grain or molasses in excess of the capacity of his distillery as estimated according to law. Special No. 165, bearing date September 6, 1875, proceeds upon the idea that a proper construction of the word used, in respect to grain or molasses mashed, is that such grain or molasses is used when alcoholic spirits, having been properly developed, are separated therefrom by distillation, and, to enforce this construction, declares that, in making this inquiry and determination, the quantity of material used each month would be ascertained by adding the quantity of material on hand in mash or beer at the beginning of the month to the quantity put into mash during the month, and deducting from the total the quantity on hand in mash or beer at the end of the month, the remainder being the quantity used during the month. Under this rule, which is still in force, the material distilled during the month, being the sum of the various quantities distilled on the several working-days of the month, is held to be the quantity of material used during the month. The total capacity of the distillery for the month (expressed in bushels of grain or gallons of molasses, as the case may be) is the sum of the different daily capacities of the distillery for the several workingdays of the month. The inquiry and determination as to the excessive use of material which the Commissioner is required by law to make, is not a matter of discretion, but rests solely in computation, and consists in an arithmetical comparison of the quantity of material so found to have been used with the total capacity of the distillery for the month in question. It will be observed that if the capacity of the distillery on each working-day has been exactly equal to the material used—that is, distilled on that day-then the total capacity will equal the total material used, and no excess of material will be found; but if the capacity has on any day or days been less than the quantity of material used-that is, distilled on such day or days-then, unless there has been a corresponding and equal overplus of capacity on some other day or days of the same month, the total capacity will not equal the total material used, and an excessive use of material will be found, for which the statute requires an assessment to be made. It will be further observed that when a distiller desires to reduce or suspend production, and commences mashing a smaller quantity of material daily, or ceases mashing altogether, he cannot safely diminish capacity by closing the unused fermenting-tubs until the larger quantities of material previously mashed have been distilled, because, unless the aggregate capacity for the month equals the total material distilled during the month, an excess of material used must result, and be followed by an assessment equal to the tax on the spirits that should be produced from the quantity of grain used in excess of the capacity of the distillery for such month. By preserving the larger capacity, the distiller will not unduly expose himself to a deficiency in the production of spirits, because the material distilled will be equal to the capacity maintained during distillation, and if a deficiency occurs, it will result from a failure to produce 80 per cent. of the amount of spirits required by the survey of such distillery to be produced from a bushel of grain or a gallon of molasses. When a change is made in the kind of material used, the change of capacity resulting therefrom will be deemed to take place on the day when the new material is distilled, so that the material and capacity ⚫ may balance each other. A careful observance of the instructions and explanations contained herein will, it is believed, prevent distillers from incurring assessments for excessive use of material arising from any reasonable misapprehension as to what their duties and liabilities are, and to this end you are requested to place a copy of this letter in the hands of every deputy collector, storekeeper, "storekeeper and gauger," and grain or molasses distiller in your district, and for this purpose you will make immediate requisition for a sufficient number of copies, and distribute them at once upon receipt thereof. GREEN B. RAUM, Commissioner. Regulations prescribed by the Secretary of the Treasury, January 12, 1866, in relation to refunding taxes: "7th. When the case of an appeal involves an amount exceeding two hundred and fifty dollars, and before it is finally decided, the Commissioner of Internal Revenue will transmit the case, with the evidence in support of it, to the Secretary of the Treasury for his consideration and advisement." IN THE MATTER OF REFUNDING INTERNAL-REVENUE TAX.-SAVINGS-BANK CASE.* 1. A claim for a refund of internal-revenue tax, under the Revised Statutes, sec. 3220, must "be presented to the Commissioner of Internal Revenue within two years next after" payment thereof, (sec. 3228;) else, it cannot be lawfully allowed. 2. It is not sufficient that such claim be presented to a collector of internal revenue within two years. (Andreae vs. Redfield, 98 U. S., 225.) 3. The allowance of such claim by the Commissioner of Internal Revenue is not conclusive on the question whether it was presented to him within two years. 4. The First Comptroller is charged with the duty of determining whether payment of such claim "is warranted by law;" and he is authorized to decide every fact, affecting the jurisdiction of the Commissioner, which may be necessary in order to ascertain whether the claim can be lawfully paid. 5. The decision in the case of the First National Bank of Greencastle vs. The United States, (15 Ct. Cls., 225,) considered. 6. The decision in U. S. vs. Kaufman (96 U. S., 567) is not applicable to the case of an allowance of a claim by the Commissioner of Internal Revenue, upon the facts of which arises a question of law to be decided by the First Comptroller. (House Ex. Doc. 27, 2d Sess. 45th Cong., 43.) July 10, 1878, the Real-Estate Savings Bank of Pittsburgh paid $972 69, as tax on deposits, to the collector of internal revenue of the twenty-second district of Pennsylvania. The deposits on which this tax was paid were exempt therefrom by the act of June 6, 1874. (18 Stats., 80.) July 9, 1880, the bank applied to said collector for a refund of this sum under section 3220 of the Revised Statutes; the application was received at the office of the Commissioner of Internal Revenue July 17; was favorably considered by the Secretary of the Treasury October 18, and allowed by the Commissioner October 21; and October 25, 1880, the Fifth Auditor "examined and adjusted an account," in favor of the bank, for $972 69, payable out of the appropriation made by the Revised Statutes, section 3689, for "refunding taxes illegally collected, (internal revenue.)" *See Davis's case, post, 258. Among the regulations prescribed by the Secretary of the Treasury, and promulgated by the Commissioner, are the following: Limitation of Time as to Claims for Refunding. TREASURY DEPARTMENT, Office of Internal Revenue, Washington, August 3, 1869. The following regulation, prescribed by the Secretary of the Treasury, is published for the information of officers of internal revenue, and all others whom it may concern. C. DELANO, TREASURY DEPARTMENT, The following additional regulation, relating to claims for the refunding of taxes, is hereby prescribed: No claim or application hereafter made for the refunding of taxes will be entitled to consideration by the Commissioner of Internal Revenue, unless the same shall be filed with the Commissioner within two years from the date of the payment of the tax, or, in case of claims already accrued, within two years from this date. WILLIAM A. RICHARDSON, Acting Secretary of the Treasury. "No claim or application for the refunding of taxes will be entitled to consideration by the Commissioner of Internal Revenue, unless the same shall be filed with him either prior to August 4, 1871, or within two years from the date of the payment of the tax. (Circular No. 79.) The account, and papers therewith, are referred to the First Comproller, to certify a balance due. DECISION BY WILLIAM LAWRENCE, First Comptroller: The Revised Statutes contain provisions as follow: "SEC. 3220. The Commissioner of Internal Revenue, subject to regulations prescribed by the Secretary of the Treasury, is authorized, on appeal to him made, to remit, refund, and pay back all taxes erroneously or illegally assessed or collected. * * "SEC. 3228. All claims for the refunding of any internal tax alleged to have been erroneously or illegally assessed or collected must be presented to the Commissioner of Internal Revenue within two years next after the cause of the action accrued. (13 Stats., 239; 14 Ib., 111; 17 Ib., 257; R. S. 3226, 3227.) H. Ex. Doc. 81 -14 * The "regulations" of the Treasury Department require that "Claims for the refunding of taxes erroneously assessed and collected should be presented through the collectors of the respective districts." This claim was not presented to the Commissioner of Internal Revenue within two years next after the cause of action accrued. A presentation to a collector within two years is not a presentation to the Commissioner. The statute says that claims must be presented "to the Commissioner." The claimant had a right by force of the statute to present his claim directly to the Commissioner of Internal Revenue. He "had an equal right with the Secretary of the Treasury to construe the law.” (Nichols vs. U. S., 7 Wall., 127.) If he chose to avail himself of the privilege (for it could properly have been no more) accorded by the "regulation," he did so at his own risk. His statutory right could not be taken away. Executive officers have no power to dispense with the plain language of statutes. It is to be presumed that Congress knew the force of language, and purposely employed the words used in this statute. Executive officers should scrupulously respect the will of Congress, and leave that enlightened body to afford relief, if deemed proper, in cases not provided for by existing laws. (14 Op., 615.) The language of an act of Congress should not be carried beyond its fair meaning. In Leavenworth Railroad Company vs. United States, (92 U. S., 751,) Mr. Justice Davis, delivering the opinion of the court, said: "Statutes must rest on the words used-'nothing adding thereto, nothing diminishing.' In Rex vs. Barrell, 12 Ad. & Ell., 468, Patterson, J., said: 'I see the necessity of not importing into statutes words which are not found there. Such a mode of interpretation only gives occasion to endless difficulty.' Courts have always treated the subject in the same way when asked to supply words in order to give a statute a particular meaning, which it would not bear without them. (Rex vs. Poor Law Comm'rs, 6 Ad. & Ell., 7; Everett vs. Wells, 2 Scott, N. C., 531; Green vs. Wood, 7 Q. B., 178.") The statute makes it a duty of the Commissioner to receive claims within two years. An executive officer cannot delegate this power. (Nichols vs. U. S., 7 Wall., 122.) In the case of the First National Bank of Greencastle vs. The United' States, (15 Ct. Cls., 225,) it was decided that the certificate of allowance of the Commissioner of Internal Revenue on a claim for refund of taxes, under section 3220 of the Revised Statutes, fixes the liability of the United States; and that this allowance cannot be set aside by the accounting officers of the Treasury Department, except for fraud, want of jurisdiction, mistake apparent upon the certificate, or such irregularity as would avoid an award by arbitrators; "but not for mistake of judgment in the weighing and giving force and effect to evidence." It was |