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  5. 34 F.Supp.2d 160 (1998)
 

CONSOLIDATED EDISON CO. OF NEW YORK, INC. v. U.S.

No. 97 CIV. 4366(MBM).

34 F.Supp.2d 160 (1998)

CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., Plaintiff, v. UNITED STATES of America, Defendant.

United States District Court, S.D. New York.

September 3, 1998.

Attorney(s) appearing for the Case

Frank Agostino, Calo Agostino, P.C., Brooklyn, NY, for Plaintiff.

Mary Jo White, United States Attorney for Southern District of New York, Amy Benjamin, Assistant U.S. Attorney, New York City, for Defendant.

OPINION AND ORDER

MUKASEY, District Judge.

In this tax refund action, Consolidated Edison Company of New York, Inc. ("ConEd"), sues to recover approximately $31,000 in penalties it paid to the Internal Revenue Service ("I.R.S.") for having improperly received and used nontaxable diesel fuel. The parties now cross-move for a summary judgment pursuant to Fed.R.Civ.P. 56(c). For the reasons set forth below, ConEd's motion is denied, and the Government's motion...

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