sionary legatee, you are authorized to accept tax on said sum, as though said sum passed directly to said Helen B. Mercer under testator's will, and without the intervention of a life estate. Respectfully, J. W. YERKES, Commissioner. Mr. JAMES S. FRUIT, Collector Twenty-third District, Pittsburg, Pa. (389.) Legacy tax. Legacy tax is a lien upon the entire property of the deceased, real and personal. TREASURY DEPARTMENT, OFFICE OF COMMISSIONER OF INTERNAL REVENUE, Washington, D. C., July 29, 1901. * SIR: In reply to your letter of the 20th instant, in which you inclosed one from Christopher Fallon relative to legacy tax, you may advise him that section 30 of the act of June 13, 1898, as amended by section 11 of the act of March 2, 1901, provides "that the tax or duty * shall be a lien and charge upon the property of every person. This office holds that the tax is a lien upon the entire property of the deceased—that is, both the personal property and the real estate. Respectfully, J. W. YERKES, Commissioner. Mr. P. A. MCCLAIN, Collector First District, Philadelphia, Pa. (390.) Surplus proceeds from distraint sales. In cases where such proceeds can not be returned to the person entitled to receive the same, they must be deposited to the credit of the Treasurer of the United States. TREASURY DEPARTMENT, OFFICE OF COMMISSIONER OF INTERNAL REVENUE, To collectors of internal revenue: Washington, D. C., July 29, 1901. The following decision of the Comptroller of the Treasury is furnished for your information: TREASURY DEPARTMENT, OFFICE OF COMPTROLLER OF THE TREASURY, Washington, D. C., July 18, 1901. SIR: By your reference of the 5th instant of a communication of the Commissioner of Internal Revenue, you request my decision of the question of the disposition required by law to be made of the surplus proceeds of property distrained and sold under internal-revenue laws for the nonpayment of taxes. (Secs. 3187-3195, Rev. Stat.) The Commissioner in his communication to you says: "Sometimes cases arise where it is difficult to determine at once who is entitled to the overplus. There may be two parties, each claiming to be the owner, and the contest may be settled in court. "The question is whether this money, which does not belong to the United States and does not constitute public funds, should be deposited to the credit of the Secretary of the Treasury, pending ascertaining who is the proper claimant entitled to receive the same, or should be covered into the Treasury the same as public funds. "This is the question which I respectfully submit for a ruling. Ordinarily, as I understand, moneys that are held in this way temporarily, which do not belong to the Government, but which are held in trust, such as offers in compromise, remain on deposit to the credit of the Secretary of the Treasury until it is decided where they belong, and I do not see why the moneys in question are not of the same character. "Another question I submit is whether, if these moneys, which are not illegally collected nor collected without authority, are covered into the Treasury, the Commissioner of Internal Revenue can refund the same to the owner under the provisions of section 3220, Revised Statutes." Section 3195 of the Revised Statutes provides as follows: "When any property liable to distraint for taxes is not divisible, so as to enable the collector by a sale of part thereof to raise the whole amount of the tax, with all costs, charges, and commissions, the whole of such property shall be sold, and the surplus of the proceeds of the sale, after satisfying the tax, costs, and charges, shall be paid to the person legally entitled to receive the same; or, if he cannot be found or refuses to receive the same, shall be deposited in the Treasury of the United States, to be there held for his use until he makes application therefor to the Secretary of the Treasury, who, upon such application and satisfactory proofs in support thereof, shall, by warrant on the Treasury, cause the same to be paid to the applicant." The terms of this provision expressly require that moneys so received shall be deposited in the Treasury of the United States." Any doubt suggested by the further language, "to be therein held for his use until he makes application therefor to the Secretary of the Treasury" is removed by the provision that the Secretary shall cause the same to be paid "by warrant on the Treasury," which is the means provided by law for withdrawing moneys from the Treasury. (Sec. 305, Rev. Stat.) I think this provision makes an appropriation for the repayment of moneys so deposited. In 6 Comptroller's Decision, 514, it was held that "Any language in an act which clearly expresses the intention of Congress that money shall be drawn from the Treasury for a purpose specified must be construed to make an appropriation." The terms of the foregoing provision expressly require that upon satisfactory proof by the person legally entitled to receive moneys so deposited the Secretary of the Treasury "shall by warrant on the Treasury, cause the same to be paid" to him. It can not be doubted that this language expresses an intention that such moneys shall be drawn from the Treasury and paid to a person so establishing his legal right thereto, and, I am of the opinion, that it makes an appropriation of such moneys for this purpose. You also ask whether the Commissioner of Internal Revenue is authorized by section 3220 of the Revised Statutes to refund these moneys to the owners. Refundment under this section could only be made as an excessive tax. It is doubtful if these moneys can be properly so regarded. But, in view of the fact that section 3195, supra, makes more specific provision for the refundment of these moneys by the Secretary of the Treasury than if made by section 3220, I think the Commissioner is thereby precluded from refunding them. It is a well-settled rule of construction that where more specific provision for a particular object is made by one of two statutes than is made by the other it must be construed to be exclusively applicable thereto. (6 Comp. Dec., 126, 716.) Respectfully, The SECRETARY OF THE TREASURY. L. P. MITCHELL, Acting Comptroller. In view of this ruling, all surplus proceeds arising from distraint sales under sections 3187-3195, Revised Statutes, will hereafter be deposited to the credit of the Treasurer of the United States and accounted for by the collector as other collections, and such surplus, over the taxes and expenses of distraint and sale, will be taken up on Form 58 and receipted for on Form 476. In cases where the collector is entirely satisfied as to the identity of the person legally entitled to receive the surplus, he will, of course, return it to such person or firm. In cases, however, where there is any doubt upon this point, the collector will comply literally with the statute and make the deposit as above directed. Claims for the amount may be made through this office, to be forwarded to the Secretary for allowance. In cases where there are other legal claims against the distrained property than those of the Government (as for State and county taxes paid upon the property or for storage charges), claim may be made in like manner, supported by proper vouchers. (391.) J. W. YERKES, Commissioner. Special tax-Brewer's sales of bottled beer. The fact that beer is conveyed through pipes from a brewery and bottled without having been put up in packages to which tax stamps could be affixed does not entitle the brewer to sell this bottled beer without paying special tax therefor as a malt-liquor dealer. The exempting provision of the statute relates only to a brewer's sales of beer in the original kegs or barrels to which the tax stamps are affixed. TREASURY DEPARTMENT, OFFICE OF COMMISSIONER OF INTERNAL REVENUE, Washington, D. C., July 30, 1901. SIR: Your letter of the 26th instant has been received, concerning the Massachusetts Breweries Company, who, you say, "make some sales in the original packages at their office on Oliver street," and who "bottle from pipe line and ask if it be necessary to pay tax as wholesale dealers at Oliver street in consequence of goods bottled from pipe line, they claiming that these goods are in the original package, never having been barreled and having once paid this tax just off the brewery premises." They can not sell their beer in bottles without subjecting themselves to special tax as malt-liquor dealers. The exempting provision authorizes brewers to sell their beer without paying special tax therefor as malt-liquor dealers, only when they sell it in the original kegs or barrels to which the tax stamps are affixed. (Fifth par., sec. 3244, Rev. Stat., first proviso.) Respectfully, J. W. YERKES, Commissioner. Mr. JAMES D. GILL, Collector Third District, Boston, Mass. (392.) Legacy tax. The whole amount of the beneficial interest of a legatee is to be considered in determin ing the rate of tax. TREASURY DEPARTMENT, OFFICE OF COMMISSIONER OF INTERNAL REVENUE, Washington, D. C., August 1, 1901. SIR: In reply to your letter of the 24th ultimo, relative to legacy tax on the estate of Daniel Toitle, deceased, you are advised that the whole amount of the beneficial interest of a legatee in an estate is to be considered in determining the rate of tax. * * * Respectfully, J. W. YERKES, Commissioner. Mr. HENRY L. HERSHEY, Collector Ninth District, Lancaster, Pa. (393.) Stamp tax-Memoranda of sales of grain on board of trade. Amendment to paragraph 2, Schedule A, act of June 13, 1898, construed. TREASURY DEPARTMENT, OFFICE OF COMMISSIONER OF INTERNAL REVENUE, Washington, D. C., August 2, 1901. GENTLEMEN: I have to acknowledge the receipt of your letter, dated the 26th ultimo, in which you present the question whether the memoranda of sales of farmers' products on an exchange or board of trade are exempt from tax by the amendment to paragraph 2 of Schedule A of the war-revenue act made by the act of March 2, 1901. You say that you assume that it never was the intention of the law that farmers and others selling actual grain should pay a tax, but that it applies only to those who sell "futures" without ever intending their delivery. You refer especially to sales of grain "to arrive," which you say you are constantly making for farmers on the Duluth board of trade, and which you think ought to be exempt from tax. In reply to your letter, you are informed that the intention of the law can only be gathered from a fair construction of the language used. The clause giving exemption from tax by its terms extends only to the "case of products and merchandise actually delivered to, and while in, vessel, boat, or car, and actually in course of transportation." In regard to the question presented, this office rules that grain sold on a board of trade or exchange "to arrive" may be exempt from tax if at the time of sale the grain is on a vessel, boat, or car, and in actual course of transportation; but if the sale is made before the grain has been shipped, or after the grain has arrived at its destination, the exemption does not apply. In order to determine the fact whether merchandise sold is actually in course of transportation at the time of sale, a bill of lading is indispensably necessary. The law provides that the bill or memorandum of sale, in order to secure exemption from tax, must be accompanied by bills of lading or vouchers showing that the said products were in actual course of transportation. You state that the original bills of lading are required for other uses, such as to accompany drafts, etc., and can not be furnished to accompany a memorandum of sale on the board of trade. In view of the language of the statute, this office rules that where the bill of lading can not be conveniently furnished to accompany the memorandum of sale a certified copy of the same may be used in lieu thereof. J. W. YERKES, Commissioner. Respectfully, BARNUM GRAIN COMPANY, Duluth, Minn (394.) Stamp tax-Bonds. The true construction of the language of paragraph 7 of Schedule A, act of June 13, 1898, as amended, relating to bonds, considered, and internal-revenue rulings 371, 377, 378, and 384 reaffirmed. TREASURY DEPARTMENT, OFFICE OF COMMISSIONER OF INTERNAL REVENUE, Washington, D. C., August 2, 1901. GENTLEMEN: Your letter, dated 24th ultimo, regarding the interpretation placed by this office upon paragraph 7 of Schedule A, act of March 2, 1901, relative to the stamp tax on bonds, has been received and carefully considered. The paragraph in question is as follows: Seven. Bond: For indemnifying any person or persons, firm, or corporation who shall have become bound or engaged as surety for the payment of any sum of money, or for the due execution or performance of the duties of any office or position, and to account for money received by virtue thereof, fifty cents. This office has construed the above as imposing a stamp tax on two classes of bonds. First, bonds for indemnifying persons, etc., who have become bound as surety for payment of any sum of money, and, second, bonds for the due performance of the duties of any office or position, and to account for money received by virtue thereof. You contend that a simpler and more natural interpretation of the statute is to construe it as applying only to bouds of indemnity. In answer to your contention, I have to say that the language of paragraph 7, Schedule A, as found in the act of March 2, 1901, is identical with the language used in Schedule B of the act of July 1, 1862, imposing stamp tax on bonds, with the addition of the word "position." This clause, in the act of July 1, 1862, was construed by this office at that time as applicable to the official bonds of sheriffs, constables, executors, trustees, guardians, etc. (See Boutwell's Manual of |