
    (No. 390-S
    TELEWELD, INC., Claimant, v. STATE TAX COMMISSIONER, Respondent.
    
      Opinion filed October 23, 1944
    
    
      Claimant, appears in its own behalf by its Treasurer.
    W. Bryan Spillers, Esq., assistant attorney general, for the state tax commissioner.
   CHARLES J. SCHUCK, Judge.

Teleweld, Inc., a corporation of the state of Illinois, was employed by the Baltimore & Ohio Railroad Company, during the years 1936 to 1941 inclusive, excepting, however, the year 1938, in welding railends, frogs and crossings for the said railroad company and was so engaged during the said period in the state of West Virginia; and consequently was charged with a tax on its gross proceeds under Item E (Contract Classification as provided for in the Business and Occupation Tax Statute of our State) and during the period so engaged paid to the state tax commissioner’s office a total of $1771.09. After the payment of the said tax it was discovered that the income should have been reported under Item H (Service Classification) and the tax paid at the rate of $1.00 per $100.00 instead of $2.00 per $100.00, as provided in Item E classification. The agreement between claimant and the Baltimore & Ohio Railroad Company, reveals that the work performed was a maintenance service, rather than a construction contract and that consequently the claimant was charged with an excessive tax. Application was duly and lawfully made by the claimant to the state tax commissioner’s office-for the refund accordingly.

It appears from an examination of the record as filed, that claimant overpaid the state in the amount of $948.67 for which an award is asked in this court.

The state tax commissioner, as well as the chief auditor of the business and occupation tax division agree that the claimant overpaid its taxes in the aforesaid amount and the matter is now submitted under section 17, article 2, chapter 14, of the state court of claims law. The attorney general’s office, through the assistant to the attorney general, upon examination of the claim approves it as one that should be paid and we agree with the conclusions reached both by the state tax commissioner and the attorney general in the matter of the refund of the overpaid taxes. Accordingly an award is made to the claimant in the amount of nine hundred forty-eight dollars and sixty-seven cents ($948.67).  