26 U.S.C. § 5113 — Investigation of claims

Page 3177 TITLE 26—INTERNAL REVENUE CODE § 5114 Editorial Notes PRIOR PROVISIONS A prior section 5112, added Pub. L. 85–859, title II, § 201, Sept. 2, 1958, 72 Stat. 1340, defined ‘‘dealer’’, ‘‘wholesale dealer in liquors’’, and ‘‘wholesale dealer in beer’’, prior to repeal by Pub. L. 109–59, title XI, § 11125(a)(1)(C), (c), Aug. 10, 2005, 119 Stat. 1953, 1957, ef- fective July 1, 2008, but inapplicable to taxes imposed for periods before such date. Another prior section 5112, act Aug. 16, 1954, ch. 736, 68A Stat. 618, contained definitions of wholesale deal- ers, prior to the general revision of this chapter by Pub. L. 85–859. AMENDMENTS 2005—Pub. L. 109–59 renumbered section 5132 of this title as this section. 1994—Pub. L. 103–465 substituted ‘‘flavoring extracts, or perfume’’ for ‘‘or flavoring extracts’’. 1976—Pub. L. 94–455 struck out ‘‘or his delegate’’ after ‘‘Secretary’’ wherever appearing. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1994 AMENDMENT Amendment by Pub. L. 103–465 effective Jan. 1, 1995, see section 136(d) of Pub. L. 103–465, set out as a note under section 5001 of this title. § 5113. Investigation of claims For the purpose of ascertaining the correct- ness of any claim filed under this subpart, the Secretary is authorized to examine any books, papers, records, or memoranda bearing upon the matters required to be alleged in the claim, to require the attendance of the person filing the claim or of any officer or employee of such per- son or the attendance of any other person hav- ing knowledge in the premises, to take testi- mony with reference to any matter covered by the claim, and to administer oaths to any person giving such testimony. (Added Pub. L. 85–859, title II, § 201, Sept. 2, 1958, 72 Stat. 1346, § 5133; amended Pub. L. 94–455, title XIX, § 1906(b)(13)(A), Oct. 4, 1976, 90 Stat. 1834; re- numbered § 5113, Pub. L. 109–59, title XI, § 11125(b)(3)(A), Aug. 10, 2005, 119 Stat. 1953.) Editorial Notes PRIOR PROVISIONS A prior section 5113, added Pub. L. 85–859, title II, § 201, Sept. 2, 1958, 72 Stat. 1340; amended Pub. L. 87–863, § 4(b), Oct. 23, 1962, 76 Stat. 1142; Pub. L. 94–455, title XIX, §§ 1905(a)(7), 1906(b)(13)(A), Oct. 4, 1976, 90 Stat. 1819, 1834; Pub. L. 100–647, title II, § 2004(t)(2), (4), Nov. 10, 1988, 102 Stat. 3609, 3610, related to exemptions from tax, prior to repeal by Pub. L. 109–59, title XI, § 11125(a)(1)(C), (c), Aug. 10, 2005, 119 Stat. 1953, 1957, ef- fective July 1, 2008, but inapplicable to taxes imposed for periods before such date. Another prior section 5113, act Aug. 16, 1954, ch. 736, 68A Stat. 619, related to exemptions from tax, prior to the general revision of this chapter by Pub. L. 85–859. AMENDMENTS 2005—Pub. L. 109–59 renumbered section 5133 of this title as this section. 1976—Pub. L. 94–455 struck out ‘‘or his delegate’’ after ‘‘Secretary’’. § 5114. Drawback (a) Rate of drawback In the case of distilled spirits on which the tax has been paid or determined, and which have been used as provided in this subpart, a draw- back shall be allowed on each proof gallon at a rate of $1 less than the rate at which the dis- tilled spirits tax has been paid or determined. (b) Claims Such drawback shall be due and payable quar- terly upon filing of a proper claim with the Sec- retary; except that, where any person entitled to such drawback shall elect in writing to file monthly claims therefor, such drawback shall be due and payable monthly upon filing of a proper claim with the Secretary. The Secretary may require persons electing to file monthly draw- back claims to file with him a bond or other se- curity in such amount and with such conditions as he shall by regulations prescribe. Any such election may be revoked on filing of notice thereof with the Secretary. No claim under this subpart shall be allowed unless filed with the Secretary within the 6 months next succeeding the quarter in which the distilled spirits covered by the claim were used as provided in this sub- part. (c) Allowance of drawback even where certain requirements not met (1) In general No claim for drawback under this section shall be denied in the case of a failure to com- ply with any requirement imposed under this subpart or any rule or regulation issued there- under upon the claimant’s establishing to the satisfaction of the Secretary that distilled spirits on which the tax has been paid or de- termined were in fact used in the manufacture or production of medicines, medicinal prepara- tions, food products, flavors, flavoring ex- tracts, or perfume, which were unfit for bev- erage purposes. (2) Penalty (A) In general In the case of a failure to comply with any requirement imposed under this subpart or any rule or regulation issued thereunder, the claimant shall be liable for a penalty of $1,000 for each failure to comply unless it is shown that the failure to comply was due to reasonable cause. (B) Penalty may not exceed amount of claim The aggregate amount of the penalties im- posed under subparagraph (A) for failures de- scribed in paragraph (1) in respect of any claim shall not exceed the amount of such claim (determined without regard to sub- paragraph (A)). (3) Penalty treated as tax The penalty imposed by paragraph (2) shall be assessed, collected, and paid in the same manner as taxes, as provided in section 6665(a). (Added Pub. L. 85–859, title II, § 201, Sept. 2, 1958, 72 Stat. 1346, § 5134; amended Pub. L. 90–615, § 2(a), Oct. 21, 1968, 82 Stat. 1210; Pub. L. 94–455, title XIX, § 1906(b)(13)(A), Oct. 4, 1976, 90 Stat. 1834; Pub. L. 98–369, div. A, title IV, § 452, July 18, 1984, 98 Stat. 819; Pub. L. 103–465, title I, § 136(b), Dec. 8, 1994, 108 Stat. 4841; Pub. L. 104–188, title I, § 1704(t)(12), Aug. 20, 1996, 110 Stat. 1888; renum- bered § 5114, Pub. L. 109–59, title XI, § 11125(b)(3)(A), Aug. 10, 2005, 119 Stat. 1953.)