
    UNITED STATES of America, Plaintiff, v. The RUSSELL MANUFACTURING COMPANY, Defendant.
    Civ. No. 10123.
    United States District Court D. Connecticut.
    May 8, 1964.
    
      John F. Beggan, Dept. of Justice, Washington, D. C. (Louis F. Oberdorfer, Asst. Atty. Gen., Fred B. Ugast, Washington, D. C., Robert C. Zampano, U. S. Atty., and Arnold Markle, Asst. U. S. Atty., New Haven, Conn., on the brief), for plaintiff.
    John D. Fassett, of Wiggin & Dana, New Haven, Conn., for defendant.
   TIMBERS, Chief Judge.

Defendant and plaintiff having filed, pursuant to Rule 56, Fed.R.Civ.P., cross-motions for summary judgment; and

The Court having heard argument by counsel for the respective parties; having received and considered the above-mentioned motions, the briefs of the respective parties, and the pleadings and other papers on file; and

The Court being of the opinion that defendant’s motion for summary judgment should be granted, and plaintiff’s motion for summary judgment should be denied, there being no genuine issue as to any material fact and defendant being entitled to judgment as a matter of law, for the reasons that:

(1) Plaintiff has failed to sustain its burden of proving that any portion of any tax was “erroneously refunded” by plaintiff within the meaning of 26 U.S.C. § 7405(b) (see Soltermann v. United States, 272 F.2d 387 [9 Cir. 1959]); and

(2) Substantially the same substantive issues as are involved in this case having been correctly decided against the government by the Court of Claims in Russell Manufacturing Company v. United States, 175 F.Supp. 159 (Ct. Cl. 1959) and Mississippi River Fuel Corporation v. United States, 314 F.2d 953 (Ct. Cl. 1963), no reason appears why this Court should not decide the instant case in accordance with said Court of Claims decisions on the principle of. stare decisis; and

(3) Even if the above-cited Court of Claims decisions had not been rendered, this Court would, upon consideration of the merits of the case de novo, decide the substantive issues in favor of defendant; it is

Ordered that defendant’s motion for summary judgment be, and the same hereby is, granted; and it is further

Ordered that plaintiff’s motion for summary judgment be, and the same hereby is, denied.  