On May 19, 1936, Judge Hulbert of this court rendered his decision denying the defendant's motion, holding section 21(d)(1) to be unconstitutional. Edwin Cigar Co. v. Higgins (D.C.) 14 F. Supp. 817. The defendant thereafter served his answer to the complaint herein and followed the service of said pleading with the notice of motion now before the court.

Before answer, the defendant moved to dismiss the bill of complaint (1) because the requirements of section 21(d)(1) (title 7 U.S.C.A. § 623(d)(1), have not been complied with, and (2) because the requirements of Revised Statutes, § 3226 (title 26 U.S.C.A. §§ 1672-1673) have not been complied with.         The first contention is overruled on the authority of Edwin Cigar Co., Inc. et al. v. Higgins (D.C. decided May 19, 1936) 14 F.Supp. 817.         As to the second contention, the defendant argues that the tax levied under the Agricultural Adjustment Act was governed by the internal revenue laws, in the absence of express provision in the act to the contrary, and that all claims for refund are controlled by Revised Statutes, § 3226, if section 21(d)(1) is found to be inapplicable.