50 F.2d 299 | Ct. Cl. | 1931
This tax ease involves a construction of section 900 of the Revenue Act of 1918 (40 Stat. 1057, 1122). The sole issue'is whether the excise tax of ten per centum of the price for which a certain, type of roller skates was sold applies to that type. The taxing act taxed the manufacturer, producer, or importer ten per centum of the price for which “skates” were sold, and plaintiff contends that sidewalk roller skates, manufactured and adapted for use by children 'of from seven to twelve years of age in skating on sidewalks, are not taxable, and seeks refund of the taxes collected by the Commissioner of Internal Revenue upon all such roller skates.
The plaintiff is a Massachusetts corporation engaged, among other activities, in manufacturing ice, roller, and what it designates as sled skates. On November 17, 1920, the Commissioner of Internal Revenue assessed against the plaintiff the following taxes: $48,502.97 tax, $14,550.91 penalties. ■ The plaintiff had not made any excise tax returns under the act of 1918.
Section 900 of the Revenue Act of 1918 (40 Stat. 1057, 1122) provides as'follows:
“Sec. 900. That there shall be levied, assessed, collected, and paid upon the following articles sold or leased by the manufacturer, producer, or importer, a tax equivalent to the following percentages of the price for which so sold or leased— * *
“(5) Tennis rackets, nets, racket covers and presses, skates, snowshoes, skis, toboggans, canoe paddles and cushions, polo mallets, baseball bats, gloves, masks, protectors, shoes and uniforms, football helmets, harness and goals, basket-ball goals and uniforms, golf bags and clubs, lacrosse sticks, balls of all kinds, including baseballs, footballs, tennis, golf, lacrosse, billiard and pool balls, fishing rods and reels, billiard and pool tables, chess and checker boards and pieces, dice, games and parts of games (except playing cards and children’s toys and games), and all similar articles commonly or commercially known as sporting goods, Id per centum.”
The plaintiff on July 2, 1924, filed its claim for a refund of $18,678.63 of the total amount of tax paid for the months of February to November, 1919, inclusive, predicating its claim upon an allegation that sidewalk roller and sled skates did not fall within the taxing statute and hence were not taxable. The refund claim was rejected by the Commissioner on December 1, 1924. This suit is for the recovery of said sum.
Plaintiff’s insistence in its final analysis converges to the single issue, that the word “skates” in the taxing act includes only ice skates. True, it concedes tax liability and paid taxes upon an alleged type of roller skates, but this concession is rested upon the so-called residuary clause of the revenue law taxing “all similar articles commonly or commercially known as sporting goods.” The record establishes that for many years prior to the period herein involved the plaintiff manufactured and sold several types of roller and ice skates. One type of roller skates was constructed along substantial lines, made strong and durable for theatrical and athletic use. Another type, less substantial, adapted more for general adult use, was made and sold in quantities. A third type differing from the ones just mentioned, while constructed along identical lines, was somewhat lighter in weight, doubtless an inducement for purchase, appealing to skaters desiring a minimum of weight. The fourth type, the type exclusively involved in this suit, designated as “sidewalk roller skates,” was of light weight, much less substantial as to parts of construction and designed especially for children. Means for adjusting the skates to varying sizes of shoes obtained, arid, in so far as the skate- itself is concerned, differed from all the previous types only in material used to make, the same. They were not intended for adult use because not susceptible to the wear and tear such use necessarily involved. ' The plaintiff insists that they are classifiable as children’s toys and hence exempt from taxation under the revenue act. Section 900 of the Revenue Act under consideration, after designating by name a large number of articles known as sporting goods,
■ “A general answer to them is that the purpose of the Eoraker act was, as we have said, to subject Porto Rican articles to the internal revenue laws of the United States, and under those laws, articles are taxed not by their commercial names or uses, but according to their alcoholic content, under the generic name of 'distilled spirits.’ ”
We think the fact that sidewalk roller skates were commercially known as toys is immaterial. A taxing act is involved and its terms prevail. Congress was not dealing with commercial distinctions, but with articles as generally understood and recognized.
What we have said applies ’ with equal force to sled skates. We think the different types of skates made and sold by the plaintiff were in all respects skates, and that the variation in design. and structure was no more than a. purpose to cater to the wants of those desiring to use skates, either roller, ice, sled, or sidewalk, a commercial intent to supply the trade with a type of skate adapted to the particular use and status of the prospective customers, a mere variation in style and structure of an existing and long-identified article of amusement and exercise well known and easily recognizable as “skates.”
The petition will be dismissed. It is so ordered.