184 F. 532 | E.D. Pa. | 1911
This is a suit in assumpsit instituted to recover the sum of $1,800, special tax and penalties thereon under
The company defended upon the grounds: (1) That it was not liable as a rectifier under the terms of section 3244; (2) that, assuming the defendant was a rectifier within the meaning of section 3244, it was exempt from the tax under section 3246 (page 2103), which provides that no special tax shall be imposed Upon apothecaries as to wines or spirituous liquors which they use exclusively in the preparation or making up of medicines; and (3) section 1047, Rev. St. (U. S. Comp. St. 1901, p. 727), bars a recovery in this case beyond a period of five years from the time suit was instituted.
What was said by the court in the cases of United States v. Twitchell Co. (No. 7, September Sessions, 1908) 184 Fed. 525, and United States v. Hance Bros. & White (No. 8, September Sessions, 1908) 184 Fed. 528, is applicable to the facts of this case as to the question of whether this defendant is to be regarded as a rectifier and not exempt under section 3246. It is contended, however, in this case, that, as the alcohol recovered from the dregs after the manufacture of the extract is used exclusively in the preparation of medicine, this case differs in this particular from the two cases above mentioned and brings it within the exemption of section 3240.
The defendant is engaged in manufacturing extract of ginger, which is used as a flavoring for soda water fountains. This is not a medicinal preparation, and the recovery of alcohol from the dregs by the use of the still is to be regarded as rectifying, and for which a tax must
In the suit the government seeks to recover this special tax for the years 1896 to 1907, respectively and inclusively, which we think cannot be done in view of section 1047, which requires all suits for penalties to be instituted within the five years. The government cannot, by reason of the provisions of this section, recover beyond five years from the date of the institution of the suit.
The parties therefore will draw a decree in accordance with this opinion, upon which judgment will be entered, after which the motion for judgment non obstante veredicto will be refused.