Rogan

A tax was assessed against' defendant-appellee by the Commissioner of Internal Revenue in April, 1940, on wine destroyed by fire in a bonded winery during 1939. The tax was paid under protest and suit was instituted against Nat Rogan, the local Collector of Internal Revenue, for refund. Judgment went for plaintiff and the collector appeals.

The action went to trial upon the first amended complaint and answer thereto, before the court sitting without a jury under appropriate stipulation. The complaint contains two alleged causes of action. The first cause is cast upon the theory that the taxes collected never legally attached to the wine, and the second cause is cast upon the theory that the taxes having legally attached, the insurance collected was less than the value of the wine and that the owner was not indemnified for the tax, interest, penalties, and costs and that therefore, they should have been abated by the Government.

The record seems to indicate that the court tried only the first cause, but made findings pertinent, if not complete, as to the second cause.

To solve a rather confused situation, both parties in argument before us conceded that unless we should sustain…