§ 5008. Abatement, remission, refund, and allowance for loss or destruction of distilled spirits

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(a)Distilled spirits lost or destroyed in bond

(1)Extent of loss allowance No tax shall be collected in respect of distilled spirits lost or destroyed while in bond, except that such tax shall be collected—

(A)Theft In the case of loss by theft, unless the Secretary finds that the theft occurred without connivance, collusion, fraud, or negligence on the part of the proprietor of the distilled spirits plant, owner, consignor, consignee, bailee, or carrier, or the employees or agents of any of them;

(B)Voluntary destruction In the case of voluntary destruction, unless such destruction is carried out as provided in subsection (b); and

(C)Unexplained shortage In the case of an unexplained shortage of bottled distilled spirits.

(2)Proof of loss In any case in which distilled spirits are lost or destroyed, whether by theft or otherwise, the Secretary may require the proprietor of the distilled spirits plant or other person liable for the tax to file a claim for relief from the tax and submit proof as to the cause of such loss. In every case where it appears that the loss was by theft, the burden shall be upon the proprietor of the distilled spirits plant or other person responsible for the distilled spirits tax to establish to the satisfaction of the Secretary that such loss did not occur as the result of connivance, collusion, fraud, or negligence on the part of the proprietor of the distilled spirits plant, owner, consignor, consignee, bailee, or carrier, or the employees or agents of any of them.

(3)Refund of tax In any case where the tax would not be collectible by virtue of paragraph (1), but such tax has been paid, the Secretary shall refund such tax.

(4)Limitations Except as provided in paragraph (5), no tax shall be abated, remitted, credited, or refunded under this subsection where the loss occurred after the tax was determined (as provided in section 5006(a)). The abatement, remission, credit, or refund of taxes provided for by paragraphs

(1)and

(3)in the case of loss of distilled spirits by theft shall only be allowed to the extent that the claimant is not indemnified against or recompensed in respect of the tax for such loss.

(5)Applicability The provisions of this subsection shall extend to and apply in respect of distilled spirits lost after the tax was determined and before completion of the physical removal of the distilled spirits from the bonded premises.

(b)Voluntary destruction The proprietor of the distilled spirits plant or other persons liable for the tax imposed by this chapter or by section 7652 with respect to any distilled spirits in bond may voluntarily destroy such spirits, but only if such destruction is under such supervision and under such regulations as the Secretary may prescribe.

(c)Distilled spirits returned to bonded premises

(1)In general Whenever any distilled spirits on which tax has been determined or paid are returned to the bonded premises of a distilled spirits plant under section 5215(a), the Secretary shall abate or (without interest) credit or refund the tax imposed under section 5001(a)(1) (or the tax equal to such tax imposed under section 7652) on the spirits so returned.

(2)Claim must be filed within 6 months of return of spirits No allowance under paragraph

(1)may be made unless claim therefor is filed within 6 months of the date of the return of the spirits. Such claim may be filed only by the proprietor of the distilled spirits plant to which the spirits were returned, and shall be filed in such form as the Secretary may by regulations prescribe.

(d)Distilled spirits withdrawn without payment of tax The provisions of subsection

(a)shall be applicable to loss of distilled spirits occurring during transportation from bonded premises of a distilled spirits plant to—

(1)the port of export, in case of withdrawal under section 5214(a)(4);

(2)the customs manufacturing bonded warehouse, in case of withdrawal under section 5214(a)(6);

(3)the vessel or aircraft, in case of withdrawal under section 5214(a)(7);

(4)the foreign-trade zone, in case of withdrawal under section 5214(a)(8); and

(5)the customs bonded warehouse in the case of withdrawal under sections 5066 and 5214(a)(9).

The provisions of subsection

(a)shall be applicable to loss of distilled spirits withdrawn from bonded premises without payment of tax under section 5214(a)(10) for certain research, development, or testing, until such distilled spirits are used as provided by law.

(e)Other laws applicable All provisions of law, including penalties, applicable in respect of the internal revenue tax on distilled spirits, shall, insofar as applicable and not inconsistent with subsection (c), be applicable to the credits or refunds provided for under such subsection to the same extent as if such credits or refunds constituted credits or refunds of such tax.

(f)Cross reference For provisions relating to allowance for loss in case of wine spirits withdrawn for use in wine production, see section 5373(b)(3).

(Added Pub. L. 85–859, title II, § 201, Sept. 2, 1958, 72 Stat. 1323; amended Pub. L. 89–44, title VIII, § 805(a), June 21, 1965, 79 Stat. 160; Pub. L. 90–630, § 1, Oct. 22, 1968, 82 Stat. 1328; Pub. L. 91–659, §§ 1, 2(a), (b), Jan. 8, 1971, 84 Stat. 1964; Pub. L. 94–273, § 47, Apr. 21, 1976, 90 Stat. 382; Pub. L. 94–455, title XIX, §§ 1905(a)(2), 1906(b)(13)(A), Oct. 4, 1976, 90 Stat. 1818, 1834; Pub. L. 95–176, §§ 2(f), 4(e), Nov. 14, 1977, 91 Stat. 1364, 1366; Pub. L. 96–39, title VIII, § 807(a)(6), July 26, 1979, 93 Stat. 281; Pub. L. 105–34, title XIV, § 1411(a), Aug. 5, 1997, 111 Stat. 1046.)

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