
    (No. 186-S
    B. D. BAILEY & SONS, Claimant, v. STATE TAX COMMISSIONER, Respondent.
    Opinion filed October 29, 1942.
   CHARLES J. SCHUCK, Judge.

The claimant, B. D. Bailey & Sons, located at Clarksburg, West Virginia, seeks reimbursement in the sum of $243.28, which amount had heretofore been paid in various sums, beginning with the year 1926 and including the year 1936, in excess of its legal business and occupation tax, known as the gross sales tax, due and payable to the state for the period designated. A demand for refund of such excessive payments has heretofore been duly and legally made to the tax commissioner of the state of West Virginia, and this official, upon being petitioned to requisition the auditor of the state for a warrant refunding the said amounts, refused the said petition on the grounds that there were no available funds out of which the said excessive payments could be paid.

The state tax commissioner recommends the refund of the excessive payments in the amount aforesaid and does not contest claimant’s right to the said refund, but concurs in the claim for the aforesaid amount; and the claim is likewise approved for payment by the attorney general’s office as one that should be submitted to the Legislature for proper appropriation and future payment. We have carefully considered the case upon the record submitted and are of the opinion that it should be entered as an approved claim and an award is made accordingly in the sum of two hundred and forty-three dollars twenty-eight cents ($243.28).

ROBERT L. BLAND, Judge,

dissenting.

I respectfully dissent to the award made by majority members of the court in the above case for the reasons and upon the grounds set forth in my dissenting opinion filed in re claim No. 182-S, C. W. Leggett Company v. State Tax Commissioner.  