The New York herald., 1871-01-13
BROOKLYN COURTS.
UNITED STATES DISTRICT cuUar-sAsTsaN 0Is1
Action to Recover Taxes on Distilled Spirits
An Illegal sscssuaent-Iuteresiing Decision
of Judge Benedict.

Action to Recover Taxes on Distilled Spirits
An Illegal Asscssment-Interesting Decision
of Judge Benedict.
Before Judge Benedict.
United States rs. oscar Ktng.-This action is
brought upon disliller's bond TO recover the sum
OF $9032 80, being the alleged balance Of taxes on
the distilled spirits manufactured by the defendant
King in the months OF November and December
1869, claimed to be still due and unpaid. The
assessment lists show that the taxes assessed
against this distlller for the period in
question amount to s2l42o "a, OF which
the balance now claimed, So,o32 S5, remains
unpaid and the case turns solely upon the
validity of the assessment made by the assessor
This assessment was arrived at by computing the
quantity of spirits produced at eighty per cent of
the producing capacity Of the dstilery estimated
by the assessor upon q rermentng period Of fOr.y-
eight hours instead or fermenting period OF
seventytw0 hours, which last period was the period
fixed in the dlsers notice, and was also the period
according TO which the producing capacity OF the
distiery was originally estimated and determined
by survey in accordance with the provisions OF sec
ton 10 OF the act of 1858. No other survey Of the
distilery was ever made in the manner required by
section TO- but the assessor, without any new sur
vey thereafter, determined the fermentnx period 70
be forty eght hours and assessed the taxes claimed
and without reference to the actual amount Of
spirits produced. Upon these facts several questions
sider but single one. 1t is contended by the
defendant that the assessment Is illegal, for the
reason that, according 70 section TO- when the
original survey, Is sought to be changed by the gov
ernment 1t can only be done by direction from the
Commissioner OF Internal Revenue to the assessor
to proceed, with the aid or some competent and
skilful person to be designated BY the Comms.
to ana make O oe ana
capacity OF the dlstillerY, and o new report
thereof to the commissioner whereas In the present
nd nln ohov,
capacity OF the distlllery without the aid OF any
person DESIGNATED by the Commissioners and without
peas e last Clause Of
refers to the survey provided for In section 10 as
the estimate ana determination or the producing
capacity OF the dst1llery and basis on which the
computation OF taxes due Is 10 be made. And Sec
ton 10 expressly provides for the correction or re-
be made in like manner with the origi-
nal survey. This provision l consider i'm.
nerasye ao and as ID ne me1oa ana
Of distnery can he changed by the government
The intention appears 10 be to confer upon the
Commissioner OF Internal Revenue the rOwer at
any time to institute proceedings for the correction
and revision OF the survey OF Q distilery, and to
limit the power OF the assessor In such case to the
making Of o new survey and report with the aid
OF some competent and skll1ul person designated
by the Commissioner. No such new survey was here
made, but the assessor alone, without any other
survey report, and without reference to the pro-
ducing capacity OF the distillery as estimated
report, assessed the taxes sued FOR. section 20
does not authorize such an assessment. Nor Is the
difficulty cured by the instructions OF the Commits
slOner OF Internal Revenue put III evidence among
other reasons, because those instructions. when ex
ahmed, show an express direction to have a new
survey held and report made, as presented by Sec
tion To- The mode presented by law for the correc-
ton revision OF the estimated producing capacity
of the defendants dlstiery not having been fol-
lowed the original survey and report furnished the
only legal basis upon which the tax could be as
sessed aud that amount as the evidence shows, has
been paid, with the exception OF small balance OF
S32 90 For that amount conceded to be due, the
government is entitled to judgment. The rest Of the
demand must be dlSaliOwed.