Opinion
No. H-59.
July 5, 1932.
Action by the General Lead Batteries Company against the United States.
Judgment for plaintiff.
This is a suit to recover $21,547.09, with interest, excise taxes paid under section 900 of the Revenue Acts of 1918 and 1921 ( 40 Stat. 1122 and 42 Stat. 291), and section 600 of the Revenue Act of 1924 ( 26 USCA §§ 881 note, 882). The question for decision is whether storage batteries, upon which the taxes in question were assessed and collected, are parts or accessories of automobiles, within the meaning of the aforesaid sections of the revenue acts.
This case having been heard by the Court of Claims, the court, upon the report of a commissioner and the evidence, makes the following special findings of fact:
1. The plaintiff, the General Lead Batteries Company, is a corporation, duly incorporated under the laws of the state of Delaware. It is now, and during the time involved herein has been, engaged in the manufacture and sale of storage batteries and storage battery parts.
2. On and between November 29, 1920, and October 31, 1924, the plaintiff paid the aggregate sum of $25,006.43 to the collector of internal revenue at Newark, N.J., as manufacturer's excise taxes for the period of October, 1920, to September, 1924, both months inclusive, under the provisions of title 9, section 900, of the Revenue Act of 1918; title 9, section 900, of the Revenue Act of 1921; and title 6, section 600, of the Revenue Act of 1924.
3. Of the said sum $21,547.09 was paid as excise taxes on completed storage batteries, and $3,459.34 was paid as excise tax on battery parts manufactured and sold separately. That tax was for the period of October, 1920, to January, 1922, and has heretofore been adjusted by refunds made by the Commissioner of Internal Revenue. No excise taxes were paid on battery parts manufactured and sold separately after the month of January, 1922.
The following tabulation shows the periods for which the excise taxes, referred to in finding 2 hereof, were paid, the dates upon which they were paid, the total amount paid on both completed batteries and on battery parts sold separately, a segregation of the amount paid and subsequently refunded, on battery parts sold separately, and a segregation showing the net amount paid on completed batteries:
=============================================================================================== | | | Excise tax | | | Total excise | paid and | Net excise Period for which paid | Date paid | tax paid | refunded | tax paid | | | on battery | on completed | | | parts | batteries ------------------------------------|----------------|--------------|------------|------------- October, 1920 ..................... | Nov. 29, 1920 | $2,105.15 | $295.26 | $1,809.89 November, 1920 .................... | Dec. 30, 1920 | 873.41 | 264.57 | 608.84 December, 1920 .................... | Jan. 29, 1921 | 591.63 | 143.30 | 448.33 January, 1921 ..................... | Feb. 28, 1921 | 931.80 | 279.46 | 652.34 February, 1921 .................... | Mar. 30, 1921 | 481.72 | 31.46 | 450.26 March, 1921 ....................... | May 2, 1921 | 1,227.95 | 261.86 | 966.09 April, 1921 ....................... | June 1, 1921 | 1,086.33 | 217.60 | 868.73 May, 1921 ......................... | June 20, 1921 | 791.22 | 322.26 | 468.96 June, 1921 ........................ | July 30, 1921 | 1,144.41 | 175.07 | 969.34 July, 1921 ........................ | Aug. 30, 1921 | 843.04 | 220.57 | 622.47 August, 1921 ...................... | Sept. 30, 1921 | 1,149.36 | 267.80 | 881.56 September, 1921 ................... | Oct. 31, 1921 | 1,412.98 | 184.68 | 1,228.30 October, 1921 ..................... | Nov. 30, 1921 | 1,316.48 | 299.83 | 1,016.65 November, 1921 .................... | Jan. 3, 1922 | 977.55 | 236.77 | 740.78 December, 1921 .................... | Jan. 31, 1922 | 622.87 | 93.73 | 529.14 January, 1922 ..................... | Feb. 28, 1922 | 510.62 | 165.12 | 345.50 February, 1922 .................... | Mar. 31, 1922 | 427.13 | .......... | 427.13 March, 1922 ....................... | Apr. 29, 1922 | 591.57 | .......... | 591.57 April, 1922 ....................... | May 31, 1922 | 624.38 | .......... | 624.38 May, 1922 ......................... | June 30, 1922 | 358.83 | .......... | 358.83 June, 1922 ........................ | July 31, 1922 | 230.01 | .......... | 230.01 July, 1922 ........................ | Aug. 31, 1922 | 290.81 | .......... | 290.81 August, 1922 ...................... | Sept. 30, 1922 | 418.54 | .......... | 418.54 September, 1922 ................... | Oct. 31, 1922 | 285.96 | .......... | 285.96 October, 1922 ..................... | Nov. 28, 1922 | 346.37 | .......... | 346.37 November, 1922 .................... | Dec. 30, 1922 | 210.27 | .......... | 210.27 December, 1922 .................... | Jan. 31, 1923 | 279.91 | .......... | 279.91 January, 1923 ..................... | Feb. 28, 1923 | 198.04 | .......... | 198.04 February, 1923 .................... | Mar. 31, 1923 | 78.98 | .......... | 78.98 March, 1923 ....................... | Apr. 30, 1923 | 481.52 | .......... | 481.52 April, 1923 ....................... | May 31, 1923 | 634.19 | .......... | 634.19 May, 1923 ......................... | July 3, 1923 | 209.11 | .......... | 209.11 June, 1923 ........................ | July 12, 1923 | 119.43 | .......... | 119.43 July, 1923 ........................ | Aug. 29, 1923 | 194.85 | .......... | 194.85 August, 1923 ...................... | Sept. 29, 1923 | 177.50 | .......... | 177.50 September, 1923 ................... | Oct. 31, 1923 | 259.08 | .......... | 259.08 October, 1923 ..................... | Nov. 30, 1923 | 279.43 | .......... | 279.43 November, 1923 .................... | Dec. 28, 1923 | 421.30 | .......... | 421.30 December, 1923 .................... | Jan. 31, 1924 | 302.76 | .......... | 302.76 January, 1924 ..................... | Feb. 29, 1924 | 229.11 | .......... | 229.11 February, 1924 .................... | Mar. 31, 1924 | 260.29 | .......... | 260.29 March, 1924 ....................... | Apr. 29, 1924 | 357.07 | .......... | 357.07 April, 1924 ....................... | May 29, 1924 | 160.58 | .......... | 160.58 May, 1924 ......................... | June 30, 1924 | 127.12 | .......... | 127.12 June, 1924 ........................ | July 31, 1924 | 103.00 | .......... | 103.00 July, 1924 ........................ | Aug. 29, 1924 | 85.09 | .......... | 85.09 August, 1924 ...................... | Sept. 30, 1924 | 81.60 | .......... | 81.60 September, 1924 ................... | Oct. 31, 1924 | 116.08 | .......... | 116.08 | |--------------|------------|------------- | | 25,006.43 | .......... | 21,547.09 ----------------------------------------------------------------------------------------------- 4. On or about November 22, 1924, the plaintiff filed with the Commissioner of Internal Revenue its claim in the amount of $21,547.09, for refund of manufacturer's excise taxes paid for the period from October, 1920, to October, 1924. The entire claim for refund was rejected on February 16, 1925, by the then Commissioner of Internal Revenue. The letter of rejection, in material part, is as follows:"The claim is based upon the contention that the storage batteries manufactured and sold by you are commercial commodities, not designed or manufactured with some peculiar characteristic which makes them adaptable for use only in connection with automobiles, and the amount paid thereon should be refunded.
"In this connection you are advised that careful consideration and inquiry have been given to the design and use of batteries in general and particular deliberation has been given the evidence presented by you.
"This office is convinced, however, that the great majority of storage batteries of the type manufactured and sold for use in connection with automobiles are actually so used. You are further advised that this office has consistently held storage batteries to be automobile parts within the meaning of the law and properly subject to tax as such."
5. Storage batteries of the types involved herein usually consist of three or more storage cells giving an operating voltage of six or more volts. A cell regardless of its size nominally delivers approximately two volts, so that a battery of any desired voltage may be assembled by properly connecting together a sufficient number of cells. A storage cell is made of an uneven number of positive and negative prepared lead plates, placed in a hard-rubber compound jar and filled with a solution of sulphuric acid and water called "electrolyte" over which is fitted a cover to prevent the electrolyte from spilling. The size of the cell depends upon the number and size of the plates and the capacity required. The plates are composed of metallic grids pasted with oxides of lead or lead and lead sulphate which are converted electro-chemically into the active materials of the finished plate which take part in chemical reactions with the electrolyte as a result of which chemical energy is transformed into electrical energy. By the reverse reactions electrical energy can be stored as chemical energy. The positive plates are alternately placed between the negative plates, and insulators or separators of corrugated wood or rubber are inserted between them to keep them out of contact. The frame of each plate is provided with a lug by means of which the plates of like polarity are burned to lead alloy connecting straps so that the plates of the cell are formed into two groups, one positive and the other negative. Each connecting strap is provided with a post which extends through the cell cover, the post of the positive connecting strap thereby becoming the positive terminal post, and the post of the negative connecting strap thereby becoming the negative terminal post of each cell, and by means of which connection is made to the adjoining cell, or to the circuit in connection with which the battery is to be used. The completed battery is formed by assembling the rectangular shaped cells sidewise or endwise in a wooden box fitted with handles, and connecting the cells in series by joining the positive terminal post of one cell to the negative terminal post of the next cell by means of intercell connectors, so that the current from one cell must pass through all of the others in order to return to where it started, leaving one post in each of the two end cells. To those posts, one positive and one negative, are attached the terminals to which the two cables through which the battery receives and delivers energy are in turn attached.
6. Storage batteries utilizing the chemical characteristics of the batteries hereinabove described have been in use since 1880 or 1881. The batteries of the period 1880-1900 were of the large, nonportable type using large glass jars in their cell structure, and were used for train lighting and in connection with power stations. The development of the small portable type of storage battery now generally used to supply current to the starting motors and for the ignition, lighting, operating the electric horn of automobiles, motortrucks and motorcoaches, and for various other purposes, occurred during the period beginning 1900. Such batteries are also used to operate the electric motors of electrically propelled vehicles. The first use of electrical storage batteries in connection with automotive vehicles was in the early part of the present century when they were used for ignition, such batteries being the lead acid paste plate portable batteries already in general commercial use for a variety of purposes. In 1911 a prominent manufacturer began to equip automobiles with electric starting, lighting, and ignition systems, and within a relatively short period the use of such systems became almost universal.
7. Storage batteries for combined starting and lighting service have two ratings, one indicating lighting ability and the other indicating the starting ability. The capacity of a storage battery is measured in ampere hours. The volume of current flow is measured in amperes. The flow of electric current from a battery through a circuit is called the discharge. The rate at which the energy is discharged by the battery is determined by the circuit of which the battery is a part. The ampere-hour capacity of a battery is dependent upon the rate of discharge; the lower the rate the greater will be the capacity. The size of the plates determines the amperage output of the battery. The capacity of the battery increases in proportion to the number and the size of the plates, and where a high rate of discharge is desired as is the case when a battery is used for starting service by supplying current to an electric motor which revolves the crank shaft of the engine, the capacity of the battery for such discharge may be increased by increasing the surface area of the plates. The capacity of a cell of any given size for high discharge service may be increased by substituting a greater number of thinner plates for a smaller number of thicker plates, and by using a soft paste as opposed to a hard paste, the soft paste by reason of its porosity giving an additional surface area. Where the service requirement is for a low rate of discharge as for lighting and ignition, radio and kindred uses, a battery having a smaller number of thicker plates and using a hard paste as opposed to a soft paste will develop a more desirable capacity and will have a longer battery life than a battery having a larger number of thinner plates using a softer paste.
8. The size or diameter of the cable or wire which is used to transfer the current or electrical energy of the battery to the device for which the electrical energy is desired, together with the size and shape of the connectors and terminals with and to which the cable or wire is attached to the battery and to the said device, controls the use which may be made of the battery, and it is accordingly incumbent upon the person installing the battery to select the proper connectors, terminals, and cables. Whether a starting and lighting battery is to be used for a combined high and low discharge service as is the case where it is used in connection with an automotive starting, lighting, and ignition system, or whether it is to be used solely for a low discharge circuit, cannot be known until after the terminals and cables have been attached to the terminal posts.
9. There is a substantial variance in the amperage or quantity of current consumed by starting motors of automotive vehicles, motorboats, stationary gasoline engine plants, farm and home lighting plants, road-making machinery, tractors, concrete mixers, etc. The average cranking current is from 125 to in excess of 400 amperes, depending to some extent upon the temperature of the engine and the viscosity of the oil. Because of the great quantity of current drawn during the starting period, a battery intended for starting, lighting, and ignition service must not only have sufficient voltage but must have relatively thin plates to furnish the larger plate surface area necessary to quick release of power for starting torque, and the connecting straps, intercell connectors, lugs and terminals, as well as the wire or cable running from the storage battery, must be very large or heavy in order to carry the large quantity or amperage of current necessary to do the work without heating or excessive loss of energy. It is also of vital importance that the battery be staunchly built to withstand the vibration and general hard usage to which a battery used in connection with the starting, lighting, and ignition system of an automobile, or motortruck, motorcoach, road-making machine, tractor, fire engine, motorboat, or airplane, is ordinarily subjected.
10. During the period involved herein the plaintiff manufactured and sold, and offered for sale, more than 100 types of electric storage batteries. The excise taxes herein sought to be recovered are those paid by the plaintiff upon its sales of starting, lighting, and ignition batteries of the more than 75 sizes illustrated and described in the plaintiff's "Automobile Starting" catalogue in evidence herein. Excise taxes were not paid by the plaintiff upon its sales of especially designed radio batteries or other batteries which by reason of their design and capacities could not be used for automobile starting and lighting service. The numerous types of starting, lighting, and ignition batteries illustrated and described in the plaintiff's catalogue referred to differed from each other as to voltage, amperage, number of plates per cell, cell assembly and length, width, height, and weight. The forepart of the catalogue contains an index of various makes and models of automobiles, trucks, fire engines, starting devices, hearses, and tractors, arranged alphabetically, and each model is listed with a particular size and shape of battery which will fit in the space provided in the machine listed. Batteries which are listed as fitting in, and adequate for, the starting, lighting, and ignition systems of tractors, hearses, Ford engine starters, and fire engines are also listed as fitting in and adequate for use in such systems for numerous automobiles. Following that index such details of design of the plaintiff's several starting, lighting, and ignition batteries as width, length, height, number of plates per cell, cell assembly, and ampere-hour capacity are stated and illustrated. The types of cables and terminals recommended for use in connection with each of the several types of batteries are also indicated. The various sizes of batteries possessed ampere-hour capacities, sufficient to meet the requirements of the starting, lighting, and ignition circuits of the automobiles, trucks, tractors, hearses, Ford engine starting devices, and fire engines for which the batteries were advertised. The catalogue also contains an index of the several types of starting, lighting, and ignition batteries manufactured by the plaintiff and corresponding sizes of batteries manufactured by nine other manufacturers. All of the plaintiff's starting, lighting, and ignition batteries were manufactured and sold with plain straight terminal posts to which any type of terminal connector, clamp, or clip could be readily and quickly attached.
11. The plaintiff sold and distributed its batteries through jobbers, retailers, dealers, its own sales subsidiaries, and direct to such users of batteries as the National District Telegraph Company which used them in connection with its burglar-alarm systems, the Western Electric Company, which used them in its laboratories for testing purposes, and the Home Light Corporation. It did not at any time during the period involved herein supply batteries to any manufacturers of automobiles to be used as original equipment. The batteries upon which the excise taxes involved herein were paid were sold and used for and in connection with the starting, lighting, and ignition systems of automobiles and other automotive vehicles, and in connection with starting, lighting, and ignition systems of motorboats; for lighting yachts and for emergency lighting on freight and passenger vessels; for lighting Christmas trees; for farm and home lighting systems; for lighting merry-go-rounds; for lighting on airplanes; for testing in engineering laboratory work; for portable moving picture machines; for testing in electrical shops; for fire-alarm systems in office buildings; for annunciator systems; for portable searchlights in tunnels, manholes, and street openings; for radio-broadcasting stations; for ignition on concrete mixers; for driving motors in small machine shops; for fans used in incubators; for operating electric clocks; for gasoline engines; for operating circular saws, silage machines, and creamery separators; for farebox meters to register fares; for operating recording clocks; for school laboratories for testing voltage drops, charge and discharge curves and cycles, motor work, etc.; for operating bells and buzzer systems in private homes; for operating magic-lantern machines, toy trains, and toy erector sets; for operating electric massage machines, and for radio-receiving sets, and for "radio rentals," i.e., supplying current for radio-receiving sets when the owner's battery was out of the set being recharged. For all of these uses listed where both high and low rates of discharge are required, the plaintiff's batteries were as well adapted as they were for automobile use under similar conditions.
Sales of the taxed batteries for many of these nonautomobile uses were made in substantial quantities. Several thousand were sold over a period of ten years, including the years in question, to one concern for use on burglar alarms alone. Thousands were sold for use on radio-receiving sets. At a single time a representative distributor sold as many as 20 to 100 for nonautomobile employment, while single users for some of the nonautomobile purposes enumerated purchased from 100 to 450 annually. These sales for nonautomobile uses were commercially profitable to the seller. Fifty to sixty-five per cent. of the annual battery sales of a representative distributor, who sold from 4,000 to 6,000 batteries a year during the period in question, were for these nonautomobile uses. One of the plaintiff's dealers selling from 400 to 600 batteries annually, during the period under review, sold 50 to 60 per cent. of the batteries on which the tax was paid for nonautomobile uses. In particular, hundreds of the taxed batteries were commonly put to use in motorboats, yachts, freight and passenger vessel wireless and emergency lighting, switchboard testing, electric shop testing, fire alarm systems and annunciators, farm and home lighting plants, cement mixers, driving motors in machine shops, and radio-receiving sets.
12. There was nothing in the design or construction of the plaintiff's starting and lighting batteries which prevented their use for the nonautomotive purposes hereinabove referred to, or for other nonautomotive uses where the electrical requirements were comparable or sufficient.
The same starting and lighting battery would under identical climatic, atmospheric, and service conditions function equally well in conjunction with an identical starting system whether that system were used in connection with an automobile, motorboat, a stationary gas engine or road machinery, or any other device with which such starting system might be used.
To meet the requirements of the starting services on automobiles, motorboats, farm and home lighting plants, gasoline engines on circular saws, silage machines, creamery separators, etc., referred to in finding 11, and for use with some varieties of testing apparatus, laboratory experimental work, emergency lighting, driving isolated motors, and radio sending, the taxed batteries required a capacity for heavy current and high discharge, while in connection with the other services, mentioned in finding 11, they had to furnish a relatively small amount of current at a low discharge rate.
13. The introduction of a line of especially designed radio batteries in 1925 interfered but little with the sale of certain of the plaintiff's types of starting and lighting batteries for radio service. The sales price differential in favor of the plaintiff's starting and lighting batteries over its specially designed radio batteries accounts to some extent for the continued demand for its starting and lighting batteries for that use.
14. More than 80 per cent. of the plaintiff's starting and lighting battery sales during the period involved herein were of its types CGL 5-6A and CGL 6-6A; the former being a six-volt battery having eleven plates per cell, and the latter being a six-volt battery having thirteen plates per cell. Those two types of batteries were adapted for use in connection with starting, lighting, and ignition systems of perhaps 90 per cent. of the automobiles then in use. Those two types, as did all other starting and lighting batteries manufactured and sold by the plaintiff during the taxable period involved herein, used plates 1/8 inch in thickness in their cell structure. The CGL 6-6A by reason of the larger number of plates per cell was slightly larger than the CGL 5-6A, and possessed a somewhat higher capacity. During the period involved herein the plaintiff refrained from adopting plates 3/32 inch in thickness in the place of plates 1/8 inch in thickness for its starting and lighting batteries on the ground that while such a change would have resulted in batteries having greater plate surface with corresponding increases in high discharge capacity and consequent greater starting torque and efficiency as starting and lighting batteries, it would at the same time have made the batteries less well adapted for general use.
15. The plaintiff's batteries were not specially designed for use upon automobiles, but were equally adapted to a variety of uses other than upon automobiles and automobile trucks and were commonly sold for and commonly put to such uses. None of the batteries sold by the plaintiff upon which the tax was paid were manufactured with any characteristic which made them adaptable for use in automobiles and automobile trucks only or prevented the use of these batteries for nonautomobile purposes. None of them were so designed or constructed as to make them primarily adapted for use on automobiles, automobile trucks, automobile wagons, or motorcycles.
George Maurice Morris, of Washington, D.C., for plaintiff.
Chas. B. Rugg, Asst. Atty. Gen. (H. Brian Holland, of Philadelphia, Pa., and Ralph C. Williamson, of Washington, D.C., on the brief), for the United States.
Before BOOTH, Chief Justice, and GREEN, LITTLETON, WILLIAMS, and WHALEY, Judges.
The plaintiff in this suit seeks to recover the sum of $21,547.09, with interest thereon, excise taxes assessed and collected under section 900 of the Revenue Acts of 1918 and 1921 ( 40 Stat. 1122, and 42 Stat. 291), and section 600 of the Revenue Act of 1924 ( 26 USCA §§ 881 note, 882).
The tax was assessed upon the sale of electric storage batteries manufactured by the plaintiff and was paid on the dates and in the amounts stated in finding 3.
The question for decision is whether the batteries sold by plaintiff were parts or accessories of automobile trucks, automobile wagons, other automobiles, or motorcycles within the meaning of the applicable sections of the revenue acts of 1918, 1921, and 1924.
The provisions of section 900 of the Revenue Acts of 1918 and 1921, and section 600 of the Revenue Act of 1924, so far as they are material in this case, are substantially the same.
Section 900 of the Revenue Act of 1918 ( 40 Stat. 1057, 1122):
"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 —
"(1) Automobile trucks and automobile wagons, (including tires, inner tubes, parts, and accessories therefor, sold on or in connection therewith or with the sale thereof), 3 per centum;
"(2) Other automobiles and motorcycles, (including tires, inner tubes, parts, and accessories therefor, sold on or in connection therewith or with the sale thereof), except tractors, 5 per centum;
"(3) Tires, inner tubes, parts, or accessories, for any of the articles enumerated in subdivision (1) or (2), sold to any person other than a manufacturer or producer of any of the articles enumerated in subdivision (1) or (2), 5 per centum."
The plaintiff during the period involved manufactured and sold a large variety of types or sizes of portable storage batteries. These batteries were sold through jobbers, retailers, dealers, distributors, and also directly to the ultimate user. They differed from each other as to voltage, amperage, number of plates per cell, cell assembly and length, width, height, and weight. They were listed for sale in a catalogue published by the plaintiff, indicating the types of cables and terminal connectors recommended for use with each battery for starting, lighting, and ignition systems. In this catalogue the particular type of battery suitable for use on the various makes and models of automobiles was designated and comparison was made between plaintiff's batteries and corresponding types of other manufacturers.
The challenged taxes were paid on all batteries sold by the plaintiff except those which could not be used on automobiles. The taxed batteries were sold and used for and in connection with the starting, lighting, and ignition systems of automobiles and other automotive vehicles, and in connection with starting, lighting, and ignition systems of motorboats; for lighting yachts and for emergency lighting on freight and passenger vessels; for lighting Christmas trees; for farm and home lighting systems; for lighting merry-go-rounds; for lighting on airplanes; for testing in engineering laboratory work; for portable moving-picture machines; for testing in electrical shops; for fire-alarm systems in office buildings; for annunciator systems; for portable searchlights in tunnels, manholes, and street openings; for radio-broadcasting stations; for ignition on concrete mixers; for driving motors in small machine shops; for fans used in incubators; for operating electric clocks; for gasoline engines; for operating circular saws, silage machines, and creamery separators; for farebox meters to register fares; for operating recording clocks; for school laboratories for testing voltage drops, charge and discharge curves and cycles, motor work, etc.; for operating bells and buzzer systems in private homes; for operating magic-lantern machines, toy trains, and toy erector sets; for operating electric massage machines; and for use in connection with burglar-alarm systems.
The Supreme Court in Universal Battery Co. v. United States, 281 U.S. 580, 50 S. Ct. 422, 423, 74 L. Ed. 1051, laid down the rule by which it is to be determined whether a particular article (storage battery in that case) is taxable under section 900 of the Revenue Acts of 1918 and 1921. The court said:
"The administrative regulations issued under section 900 uniformly have construed the term `part' in that section as meaning any article designed or manufactured for the special purpose of being used as, or to replace, a component part of such vehicle, and which by reason of some characteristic is not such a commercial article as ordinarily would be sold for general use, but is primarily adapted for use as a component part of such vehicle. * * *
"Certainly it would be unreasonable to hold that articles equally adapted to a variety of uses and commonly put to such uses, one of which is use in motor vehicles, must be classified as parts or accessories for such vehicles. And it would be also unreasonable to hold that articles can be so classified only where they are adapted solely for use in motor vehicles and are exclusively so used. Magone v. Wiederer, 159 U.S. 555, 559, 16 S. Ct. 122, 40 L. Ed. 258. We think the view taken in the administrative regulations is reasonable and should be upheld. It is that articles primarily adapted for use in motor vehicles are to be regarded as parts or accessories of such vehicles, even though there has been some other use of the articles for which they are not so well adapted."
This court in numerous decisions, both before and since the decision in the Universal Battery Co. Case, supra, has applied the rule announced in that case. Atwater Kent Mfg. Co. v. United States, 62 Ct. Cl. 419; Berg Bros. Mfg. Co. v. United States, 67 Ct. Cl. 165; Milwaukee Motor Products, Inc., v. United States, 66 Ct. Cl. 295; Wells Manufacturing Co. v. United States, 66 Ct. Cl. 283; White Brass Castings Co. v. United States, 70 Ct. Cl. 786; Advance Automobile Accessories Corp. v. United States, 70 Ct. Cl. 786; Blueblaze Motor Specialties Corp. v. United States, 70 Ct. Cl. 785; Anthony Company v. United States (Ct.Cl.) 56 F.2d 481, decided March 7, 1932; W.M. Dutton Sons v. United States (Ct.Cl.) 59 F.2d 839, decided June 6, 1932.
In Atwater Kent Mfg. Co. v. United States, supra, it was said: "* * * 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 Milwaukee Motor Products, Inc. v. United States, supra, the court said:
"In addition to the uses above enumerated, the timers manufactured by plaintiff, during the times when the excise taxes were paid, were extensively used on engines other than automobile engines, namely, on marine engines of special manufactured and also on tractors, cement mixers, and hoists.
"The wide variety of uses of the timers involved herein, as indicated above, brings them clearly within the decision of the Atwater Kent Case, supra. * * *"
In W.M. Dutton Sons v. United States, supra, the court said: "Under the uniform decisions of this court, and the decision of the Supreme Court in Universal Battery Case, supra, 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, can not be considered as primarily adapted for use in motor vehicles."
In Anthony Company v. United States, supra, supplemental opinion for a new trial, the court said: "* * * What the court found in substance was that air pumps similar in style and design were manufactured and used before automobiles were constructed, and that the air pumps in question were equally adaptable for use with many different kinds of apparatus other than automobiles."
Applying the rule announced in these cases to the facts in the instant case, it is clear the storage batteries manufactured and sold by the plaintiff on which the taxes were paid were not subject to the tax.
The plaintiff's batteries were not designed or manufactured for the special purpose of being used as or to replace component parts of any vehicle named in the statutes; neither were they primarily adapted for such use. On the contrary, the evidence abundantly shows, and we have found, that they were adaptable to a great variety of uses other than on automobiles, and were commonly put to such uses. A purchaser of one of the batteries could, without making any change in it whatever, use it for any one of a great variety of purposes, for all of which it was equally adaptable. It cannot therefore be said it was primarily adapted for use in an automobile, automobile truck, or automobile wagon.
Cole Storage Battery Co. v. United States, 65 Ct. Cl. 164; Amplus Storage Battery Co. v. United States, 67 Ct. Cl. 711; Edison Storage Battery Co. v. United States, 67 Ct. Cl. 543; and Vesta Battery Corporation v. United States, 67 Ct. Cl. 711, relied upon by the defendant, are distinguishable from this case on the facts.
In Vesta Battery Corporation v. United States, supra, it was found that the batteries in question were of a type especially suitable for use on automobiles as replacements for batteries which were a part of the automobile's original equipment, and that they were not adapted to any other primary use.
In Edison Storage Battery Co. v. United States, supra, there was a finding that the batteries in respect to which the taxes were paid were especially adaptable for supplying the motive power for electrically propelled automobile trucks, and for lighting on automobiles, and were sold for these specific purposes.
In Cole Storage Battery Co. v. United States, supra, there was a finding that: "Plaintiff during the period involved in this suit manufactured and sold lighting and starting batteries which were designed for the special purpose of being used to replace a component part for automobiles."
It was further found that: "Plaintiff's business policy was to manufacture a battery which would be used on any make of automobile equipped with a storage battery. Many types of batteries were manufactured that would not have been necessary except that the specifications for different automobiles required batteries of different shapes."
The affirmative findings in these cases that the batteries involved were specially adapted or designed for use in automobiles were based on the absence of a showing that they were equally adapted to a variety of other uses and were commonly put to such uses. With the facts so found, the validity of the tax in each case was sustained.
The facts in this case are entirely different. The plaintiff's batteries were designed for general use, and were put to more than thirty uses other than on automobiles, for all of which they were equally as well adapted as for use on automobiles.
"If the article was `equally adapted' for a variety of uses, obviously it could not be `specially adapted' for use upon automobiles. Therefore a finding that the article was `equally adapted' for other uses, and is commonly so used, is equivalent to a finding that it was not `specially adapted' for use on automobiles." Anthony Company v. United States, supra (supplemental opinion by Judge Green).
The plaintiff is entitled to recover, and is therefore awarded a judgment for the amount of the taxes involved, $21,547.09, with interest as provided by law. It is so ordered.