185 Reporter's Statement of the Case during the periods involved. During the latter portion of the period covered by plaintiff's claims a more accurate record of the production of the cases of beer and the crown. account was kept. 21. A comparison of tax-paid barrels, number of cases bottled, including those damaged, stated in the equivalent of pints and yield during certain periods, based on plaintiff's method of computation, follows: 22. The following results were shown with respect to meter #519 for the month of May 1936: 23. Plaintiff's bottling house operated normally 72 hours a day. The bottling-house employees were allowed, by agreement with their Union, ten minutes each morning and afternoon as "drinking time." 24. Beer was freely consumed in the bottling houses of plaintiff during the periods involved herein. Beer was frequently lost during these periods through accident or otherwise; for example, chipped bottles passing through the bottling machine causing beer to spurt out at the crown, breakage of bottles in the pasteurizer, overflow at Opinion of the Court 93 C. Cls. the bottling machines because of improper counter pressure thereat, jamming of filler spout at bottling machine, improper filling of bottles at the filler necessitating auxiliary filling from bottle to bottle by hand and consequent spillage, and from other causes of which it is not possible to keep any record in the brewery. 25. During the periods involved herein, plaintiff kept no records as to the quantity of beer consumed by its employees in its bottling house, or otherwise, or as to the amount of beer lost by causes enumerated above, except as to beer lost through breakage. The court decided that the plaintiff was not entitled to recover. LITTLETON, Judge, delivered the opinion of the court: The essential facts established by the record and material to the issue presented in these cases are set forth in the findings. The question presented concerns the correctness of the method employed by the Treasury Department in determining the measure of plaintiff's liability for the excise tax imposed by section 608 of the Revenue Act of 1918 as amended by section 9 of the Liquor Taxing Act of 1934, and, in the last analysis, the question is whether plaintiff has proven that it overpaid the excise tax due by it on beer which it manufactured in the amounts claimed, or in any determinable amount. We are of opinion upon the facts disclosed by the record that plaintiff has not established that the determination of the Commissioner of Internal Revenue with respect to its excise tax liability for the periods involved was erroneous, or that it has overpaid the excise tax due by it because of any established inaccuracy in the meters used in measuring the quantity of beer and the ale produced for the purpose of computing the excise tax imposed by and payable under the provisions of the revenue statutes above mentioned. Section 608 of the Revenue Act of 1918 (40 Stat. 1057, U. S. Code, Title 26, sec. 1150 (a)) as amended by section 9 of the Liquor Taxing Act of 1934 (48 Stat. 313, U. S. Code. Title 26, sec. 1330), provided as follows: 185 Opinion of the Court That there shall be levied and collected on all beer, lager beer, ale, porter, and other similar fermented liquor, containing one-half of one per centum, or more, of alcohol, brewed or manufactured and hereafter sold, or removed for consumption or sale, within the United States, by whatever name such liquors may be called, in lieu of the internal-revenue taxes now imposed thereon by law, a tax of $5.00 for every barrel containing not more than thirty-one gallons, and at a like rate for any other quantity or for the fractional parts of a barrel authorized Section 607 of the Revenue Act of 1918, supra, provided as follows: That the Commissioner, with the approval of the Secretary, is hereby authorized to require at distilleries, breweries, rectifying houses, and wherever else in his judgment such action may be deemed advisable, the installation of meters, tanks, pipes, or any other apparatus for the purpose of protecting the revenue, and such meters, tanks, and pipes and all necessary labor incident thereto shall be at the expense of the person on whose premises the installation is required. Any such person refusing or neglecting to install such apparatus when so required by the Commissioner shall not be permitted to conduct business on such premises. Pursuant to section 607, the Commissioner of Internal Revenue promulgated Treasury Regulations 18, paragraphs (a) to (g), inclusive, and 21 and 23, relating to the installation, use, and inspection of meters for the purpose of measuring beer manufactured and withdrawn for purposes of the tax, par. 12 (a) of this regulation being as follows: Brewers shall be required to provide meters for the measurement of beer withdrawn for tax payment, which meters shall be accessible to government officers at all reasonable hours during which the brewery is operating. Supervisors shall furnish brewers with a list of manufacturers whose meters conform to the prescribed specifications and have been approved. Prior to the periods of the claims here involved in these cases two types of meters were approved by the Commissioner of Internal Revenue and the Secretary of the Treasury, and by contract between the brewer and the manu Opinion of the Court 93 C. Cls. facturer these meters were guaranteed for a period of one year within a tolerance of 0.4% of accuracy. Approved meters were installed and used by plaintiff in its brewery and these were, during the periods involved, constantly and regularly inspected in accordance with regulations. The excise tax paid, a portion of which is here sought to be recovered, was determined and computed by the Commissioner from information disclosed by these approved meters as to the number of barrels of beer produced by plaintiff during the periods involved. This is the only independent means by which the defendant might after the beer had been produced and removed, or may now check the amount of beer removed from breweries for the purpose of bottling for the trade. Prior to October 17, 1935, when the meters installed for use by plaintiff were approved, Government calibrated tanks, to each of which was attached a telegauge, were used for the purpose of measuring beer produced for purpose of the excise tax to be collected. This latter method was subject to so many variable factors that it was found to be unsatisfactory and was abandoned. After that time approved meters were used instead. Frequent tests were made of these meters by master meters calibrated and sealed by the U. S. Bureau of Standards, and such tests were regularly made of plaintiff's meters. When a meter was found to be registering the flow of beer within a tolerance of 0.4% of accuracy, either plus or minus, no correction or adjustment of such meter was made, but when the meter showed to be registering beyond such tolerance, either plus or minus, it was dismantled, cleaned, retested, and adjusted to under-register in favor of plaintiff within the degree of tolerance of 0.4 of 1%. The record shows that this procedure was followed not only with respect to plaintiff's operations but it was followed generally in the entire brewing industry. It was the usually recognized and approved method. Reports of the tests made of the meters were and are kept by the Alcohol Tax Unit of the Bureau of Internal Revenue. Upon the filing of a claim for refund, the Commissioner under the established and customary practice of his office, makes an investigation of the claim, which investigation is not necessarily confined to 185 Opinion of the Court the period covered thereby, and to the extent the investigation supports the claim a refund is made. If the investigation made does not support the claim, or if such investigation discloses an additional tax due for a period covered by the investigation greater than the period covered by the claim, the refund claim is denied and the additional tax found to be due is assessed and collected. This procedure was followed in plaintiff's case, and inasmuch as an underpayment of tax was indicated for the period October 18, 1935, to June 20, 1938, of $2,261.30, the claims filed by plaintiff were denied and this additional tax was assessed and paid. In determining this underpayment for the period mentioned, the Commissioner ascertained the number of barrels of beer transferred from plaintiff's brewery to the bottling house on the basis of the meter tests described in the findings from the date of one meter test to the date of each succeeding meter test within the period, based upon the percentage of meter errors disclosed by these tests. The formula used in determining the amount of underpayment of tax is set forth in finding 15. By applying this method the Commissioner determined from the information available to him, and the information set forth in the regular reports required by the regulations of meter inspectors, that for the periods involved herein the number of barrels of beer on which the tax had not been paid, based upon the percentage of meter errors, was 635.09, and that on the same basis 182.83 barrels had been over-tax paid, or a net total under-tax paid of 452.26 barrels, for which the additional tax of $2,261.30 was assessed. Although the meter method of measuring beer for tax purposes may be subject to some criticism on the ground that it is not infallible and may not disclose in every case the exact number of barrels of beer that had passed through the meters at any given period, the record shows, and we have found as a fact, that the method used in plaintiff's plant, upon the basis of which the Commissioner made his determination, is generally accepted as fair throughout the brewing industry and is the best devised over a period of time in the interest of accuracy in determining the amount of beer, by meter tests, for the purpose of measuring the |