Publishers Guild, Inc.

This petition for refund of certain federal employment taxes is before the court on defendant’s motion to dismiss for lack of jurisdiction and plaintiffs opposition thereto. Defendant moves for dismissal under Rule 38(b), but since *644the parties have presented matters outside the pleadings, we shall treat the motion as one for summary judgment and dispose of it as provided in Rule 101.

The limited issue before the court at this time is whether statutory prerequisites to our jurisdiction have been satisfied, namely, that plaintiff has made payment in full, and has filed a proper claim for refund,…