
    
      Opinion issued December 10, 1975
    
    THE F. & M. SCHAEFER BREWING CO. vs. NONINTOXICATING BEER COMMISSION
    (No. D-904)
    
      Louie A. Paterno, Jr., Attorney at Law, for the claimant.
    
      Henry C. Bias, Jr., Deputy Attorney General, for the respondent.
   JONES, JUDGE:

The claimant, the F. & M. Schaefer Brewing Co., was engaged in the distribution of beer in the State of West Virginia from August, 1973, until June 30, 1974, when it discontinued business for economic reasons. During 1973 in compliance with Chapter 11, Article 16 of the Code of West Virginia and regulations promulgated .pursuant thereto, the claimant purchased tax paid crowns and lids from the respondent, Nonintoxicating Beer Commission, in the total sum of $32,160.00. At the time of withdrawal from the State, the claimant had on hand unused, prepaid tax crowns and lids in the sum of $24,474.67. There being no statutory remedy for the recovery of such prepaid taxes, the claimant seeks redress in this Court.

Under pertinent regulations the claimant had no choice but to estimate how much its taxes would be for an arbitrary period, and prepaid crowns and lids were purchased accordingly. However, sales were far below estimates, and financial losses dictated the claimant’s withdrawal. The respondent has joined in a stipulation that tax paid beer closures, representing West Virginia Beer Tax paid by the claimant in the amount of $24,474.67, have been destroyed, and that the respondent does not deny the validity of any part of this claim.

Cases heretofore decided by this Court have held that the retention of similarly prepaid taxes constituted unjust enrichment and reimbursement was required after destruction of the unused tax tokens. General Foods Corporation v. State Tax Commission, 9 Ct. Cl. 193, and Central Investment Corporation v. Nonintoxicating Beer Commission, Ct. Cl. (D-740). The Court considers the amount claimed to be an overpayment of tax which the respondent is not entitled to withhold on the ground that such retention would constitute unjust enrichment.

Accordingly, the Court hereby awards the claimant, The F. & M. Schaefer Brewing Co., the sum of $24,474.67.

Judge Ducker participated in the decision of this case, but his resignation from the Court was effective before this opinion was prepared and approved.

Award of $24,474.67.  