Anthony Co. v. United States

Full title: ANTHONY CO. v. UNITED STATES

Court: Court of Claims

Date published: Dec 7, 1931

54 F.2d 165 (Fed. Cir. 1931)

Opinion

No. H-447.

December 7, 1931.

Action by the Anthony Company against the United States of America.

Judgment for the plaintiff.

This case having been heard by the Court of Claims, the court, upon the stipulation of the parties and the evidence adduced, makes the following special findings of fact:

Plaintiff is a corporation and, among other things, is and has been engaged in the business of manufacturing and selling air pumps. Plaintiff paid taxes on sales of air pumps made during the period from July, 1919, to July, 1923, inclusive, in the amount of $29,925.94. In due time it filed a claim for refund of these taxes, which was rejected by the Commissioner of Internal Revenue on April 5, 1924.

Plaintiff paid taxes on sales of air pumps made during the period from August, 1923, to June, 1925, inclusive, in the amount of $4,568.01, and, in due time filed a claim for refund of these taxes, which was rejected by the Commissioner of Internal Revenue on January 2, 1926. Plaintiff paid taxes on sales of air pumps made during the period from July, 1925, to February, 1926, inclusive, in the amount of $1,156.25, and in due time filed a claim for refund of these taxes, which was rejected by the Commissioner of Internal Revenue on March 1, 1927.

The taxes above mentioned were paid under the statutes of the United States which provided for the assessment and collection of excise taxes on sales of parts or accessories for automobiles, automobile trucks, and motorcycles.

It is conceded that a recovery for any taxes paid prior to November 10, 1922, is barred by the statute of limitations. An itemized statement of the taxes involved and paid by plaintiff since that date is as follows:

============================================================================================= Period | Year | Month | Year | Amount | Date paid -----------------------|------|-----------------------------|------|-----------|------------- Jan. ................. | 1922 | Nov. ...................... | | $268 00 | 11/21/22 Oct. ................. | | Dec. ...................... | | 440 06 | 12/1/22 Nov. ................. | | Jan. ...................... | 1923 | 252 51 | 1/3/23 Dec. ................. | | Jan. ...................... | | 386 21 | 1/31/23 Jan. ................. | 1923 | Mar. ...................... | | 190 69 | 3/1/23 Feb. ................. | | Mar. ...................... | | 217 12 | 3/30/23 Mar. ................. | | May ....................... | | 404 52 | 5/1/23 Apr. ................. | | June ...................... | | 316 57 | 6/1/23 May .................. | | June ...................... | | 303 88 | 6/30/23 June ................. | | July ...................... | | 118 79 | 7/31/23 July ................. | | Aug. ...................... | | 540 24 | 8/21/23 Aug. ................. | | Oct. ...................... | | 207 49 | 10/1/23 Sept. ................ | | Oct. ...................... | | 327 24 | 10/31/23 Oct. ................. | | Dec. ...................... | | 375 87 | 12/3/23 Nov. ................. | | Dec. ...................... | | 144 04 | 12/31/23 Dec. ................. | | Jan. ...................... | 1924 | 160 65 | 1/30/24 Jan. ................. | 1924 | Feb. ...................... | | 479 28 | 2/28/24 Feb. ................. | | Mar. ...................... | | 565 17 | 3/31/24 Mar. ................. | | Apr. ...................... | | 192 77 | 4/30/24 Apr. ................. | | May ....................... | | 166 77 | 5/31/24 May .................. | | July ...................... | | 132 01 | 7/2/24 June ................. | | July ...................... | | 239 60 | 7/30/24 July ................. | | Aug. ...................... | | 157 56 | 8/16/24 Aug. ................. | | Sept. ..................... | | 165 05 | 9/30/24 Sept. ................ | | Oct. ...................... | | 187 10 | 10/31/24 Oct. ................. | | Dec. ...................... | | 104 19 | 12/2/24 Nov. ................. | | Dec. ...................... | | 54 98 | 12/30/24 Dec. ................. | | Jan. ...................... | 1925 | 138 40 | 1/29/25 Jan. ................. | 1925 | Feb. ...................... | | 138 58 | 2/27/25 Feb. ................. | | Apr. ...................... | | 147 23 | 4/2/25 Mar. ................. | | May ....................... | | 143 89 | 5/14/25 Apr. ................. | | June ...................... | | 128 86 | 6/5/25 May .................. | | July ...................... | | 72 45 | 7/1/25 June ................. | | July ...................... | | 138 82 | 7/30/25 Oct. ................. | | Dec. ...................... | | 159 46 | 12/3/25 Dec. ................. | | Jan. ...................... | | 92 82 | 1/29/26 Jan. ................. | 1926 | Mar. ...................... | | 113 77 | 3/2/26 Feb. ................. | | Mar. ...................... | | 120 06 | 3/30/26 Nov. ................. | 1925 | Dec. ...................... | | 131 49 | 12/31/26 Aug. ................. | | Oct. ...................... | | 139 25 | 10/1/25 Sept. ................ | | Oct. ...................... | | 274 30 | 10/31/25 July ................. | | Aug. ...................... | | 125 10 | 8/31/26 --------------------------------------------------------------------------------------------- The pumps upon which the taxes involved herein were paid were of the portable, hand-operated, single-acting, single-cylinder type. They were made in three sizes, and differed from each other only as to size and materials used in construction. The pumps were alike in design and principle of operation, and were fitted with connectors which could be applied to a great many devices designed for the use or storage of compressed air, including atomizers and apparatus for spraying paint and germicides, clothes-pressing machines, torches, pneumatic cushions, mattresses, campers' outfits, kerosene and gasoline stoves, fire extinguishers, and other compressed air using devices, and for inflating bicycle tires as well as for inflating the tires of automobiles and automobile trucks.

Over sixty per cent. of the air pumps so taxed were sold to dealers in automobile accessories, but it is a matter of common knowledge that hand air pumps were manufactured and used before automobiles were constructed. Having been so used, and being equally adapted for use with so many different kinds of apparatus, these pumps were not primarily adapted for use upon automobiles.

Plaintiff advertised its pumps as "America's best tire pumps," but they were not specially adapted for anything except pumping air by hand and for use on all kinds of apparatus and machinery for which air pressure could be supplied in this manner.

The excise taxes involved herein were paid by the plaintiff on all pumps sold by it during the period involved, with the exception of twenty-five pumps which it sold directly to automobile and truck manufacturers, and which were sold for export.

George M. Wilmeth, of Washington, D.C., for plaintiff.

Ralph C. Williamson, of Washington, D.C., and Charles B. Rugg, Asst. Atty. Gen., for the United States.

Before BOOTH, Chief Justice, and GREEN, LITTLETON, WILLIAMS, and WHALEY, Judges.

GREEN, Judge.

This action is commenced to recover taxes levied on sales of hand-operated air pumps as automobile accessories. The statutes under which taxes were levied upon automobile accessories have been so often set out in the opinions of this court that we do not think it necessary to repeat them. Plaintiff claims that the taxes were illegally assessed, and the question to be determined in the case is one of fact; that is, it depends on whether the nature of the articles was such as to subject them to taxes as automobile accessories.

As before stated, the taxes were levied upon sales of hand-operated air pumps. It is a matter of common knowledge that such air pumps were made and used before automobiles came into existence, not only for pumping up bicycle tires, but for other purposes, and that as the number of apparatus grew upon which they could be used, and automobiles came to be common, these pumps were much increased in size and in power. The pumps which the plaintiff made were adapted for use on so many different kinds of apparatus, some of which are enumerated in the findings, that even the approximate number is not known. The connections supplied with the pumps appear to have been standardized, so that without any change they were fitted to supply compressed air for all, or practically all, of the different kinds of purposes for which they were used. While adapted for pumping up automobile tires, they were equally adapted for a great many other purposes, and were so used. It is quite evident that they were not originally designed for pumping up automobile tires, and it cannot be said that they are primarily adapted for that purpose, when they are equally adapted to so many other purposes. It is true that as the number of automobiles enormously increased, over sixty per cent. of plaintiff's sales of these pumps were made to dealers in automobile accessories, and probably were sold mostly for use on automobiles. But we do not think this was material. If this fact were controlling, and the tax were still a part of our revenue law, it would follow that if the taxpayer could show, as we have no doubt he could for recent years, that the air for automobile tires was now furnished by the filling stations from pressure tanks and air pumps were no longer sold or used for filling automobile tires with air, then and in such case the tax would not apply. But we do not think the application of the tax is to be wholly controlled by such a matter. In the case of Atwater Kent Mfg. Co. v. United States, 62 Ct. Cl. 419, this court held that "where the articles, as those we are concerned with, are applicable for use in different kinds of machines or appliances and are just as applicable to the one use as to the other they are not distinctively parts of automobiles so as to be taxable under these statutes."

In a number of other cases we have announced the same rule. The case of W.M. Dutton and Sons Co. v. United States, decided April 6, 1931, 48 F.2d 454, 456, 72 Ct. Cl. ___, was a case in which the tax on sales of air pumps was involved and similar to the case now under consideration in all of its essential features. In that case, the court said: "Under the uniform decisions of this court, and the decision of the Supreme Court in Universal Battery Co. Case, supra [ 281 U.S. 580, 50 S. Ct. 422, 74 L. Ed. 1051], the articles in question being equally adapted to a variety of uses, and commonly put to such uses, one of which is use in motor vehicles, cannot be considered as primarily adapted for use in motor vehicles."

It should be noted in this connection that the case differs from some others decided by this court in which it was found that the article involved was specially designed for use upon automobiles or in connection therewith. There was no such evidence in the case at bar. The pumps involved could be used without any change whatever for numerous other purposes.

We do not need to consider whether the rule above stated applied to the twenty-five pumps which were sold directly to automobile and truck manufacturers to go with machines to be exported, as these sales would be exempt.

It follows that plaintiff is entitled to recover all of the taxes paid on the sales of its pumps, except where barred by the statute of limitations, with interest thereon according to law. The amount of such taxes is shown in the findings. Judgment will be rendered accordingly.