Riddell

This is an action by a taxpayer to recover excise taxes paid to defendant as Collector of Internal Revenue for the Sixth Collection District of California pursuant to the Internal Revenue Code, 26 U.S.C.A. § 1700 (e) and 26 U.S.C.A. § 1650 .

The material facts out of which this litigation arose were stipulated to by the parties. The plaintiff was engaged in the ownership, conduct and .operation of a hotel business situated in La Jolla, California. In connection with this business, plaintiff, during certain periods including those times covered by the assessment of taxes involved herein, maintained accomodations for dancing on the terrace in front of its building, and furnished music in connection therewith. Adjoining said terrace was a bar in and from which refreshments were furnished for a charge which was fixed and uniform with respect to, and based upon, established charges for such refreshments, regardless of whether or not dancing or music was in progress on the terrace. The bar customarily opened at noon in the summer season, and at . 4:00 o’clock R.M. in the winter season, and remained open -until 2:0Q o’clock A.M. The music and dancing, when in progress, customarily,…