Opinion
No. J-116.
June 16, 1930.
Suit by the Hinsdale Manufacturing Company against the United States.
Petition dismissed.
This case having been heard by the Court of Claims upon the evidence and the report of a commissioner, the court makes the following amended special findings of fact:
I. The Hinsdale Manufacturing Company, Inc., during the times hereinafter mentioned, was and now is a corporation organized, existing, and operating under and by virtue of the laws of the state of Illinois, with its principal place of business located at Chicago, Ill.
During the times hereinafter mentioned plaintiff was engaged in the business of manufacturing and selling socket wrenches.
II. Plaintiff and all the officers thereof have at all times borne true allegiance to the United States and have not in any way voluntarily aided, abetted, or given encouragement to rebellion against the United States. Plaintiff is a citizen of the United States, the sole owner of the claim hereinafter stated; no action has been had thereon before Congress or any governmental department, and no part of it has ever been sold or assigned.
III. The wrenches manufactured by plaintiff were advertised in a circular and therein illustrated and described separately and in sets. These sets consisted of an assembly of tools and wrenches, set No. 11-A being described as "For car owners' tool box. The No. 11-A socket set is packed in finished wood box with ratchet wrench 9 inches long. Eight extra-heavy hardened pressed steel sockets of popular opening sizes. Extension bar 8 inches long and forged universal joint."
"Opening sizes of hexagon sockets are: 7/16, ½, 9/16, 19/32, 5/8, 11/16, ¾ inch. Square socket: ½ inch." The circular further states that:
"This set is extremely popular with the individual car owners. Standard shipping case contains 50 sets. Weight, 3 lbs."
It also advertises set F-10, "Special set for Ford owners," which set contains 5 wrenches and is put up in a pasteboard box container or carton, upon which is printed "Set No. F-10 for Fords."
IV. Wrenches similar in size, shape, and contour were sold by plaintiff during the period involved in this suit other than as parts of set No. F-10, described in the preceding finding, upon which plaintiff was not required to pay tax.
Plaintiff received a letter dated April 26, 1924, from the collector of internal revenue at Chicago, Ill., wherein it was stated that:
"You are advised that the wrenches shown on the attached circular are not subject to tax when sold separately. However, when sold in sets designed for use in connection with an automobile, such sets are considered automobile tool kits and subject to tax when sold by the manufacturer thereof. The fact that the sets are not sold in permanent containers, but are shipped in cartons, does not alter their taxable status."
The articles taxed in this case by the commissioner as packed and sold were primarily adapted for use on automobiles.
V. Plaintiff made and filed its manufacturer's excise tax returns monthly for the period May, 1922, to July, 1923, inclusive, showing the amount of tax due thereon which was duly assessed on such returns by the Commissioner of Internal Revenue, paid by plaintiff, for the months, in the amounts, and on the dates hereinafter set forth as follows:
================================================================================== Period | Year | Month | Year | Page | Line | Amount | Date Paid --------------|---------|------------|-------|------|------|-----------|---------- May-July .... | 1922-23 | Aug ...... | 1923 | 121 | 8 | $1,462.93 | 11/1/24 ---------------------------------------------------------------------------------- VI. On June 15, 1926, plaintiff filed its claim for refund No. 353543 of manufacturer's excise tax so paid on socket wrenches for Ford cars for the period May, 1922, to July, 1923, inclusive, in the amount of $1,462.93, which was duly rejected by the Commissioner of Internal Revenue on January 18, 1927.George M. Wilmeth, of Washington, D.C., for plaintiff.
R.C. Williamson, of Washington, D.C., and Herman J. Galloway, Asst. Atty. Gen., for the United States.
This case is controlled by the decision in the case of the Fairmount Tool Forging Company, a corporation, v. United States, 42 F.2d 591, decided by this court on this date.
Plaintiff's petition should be dismissed. It is so ordered.
See Universal Battery Co. v. United States, 281 U.S. 580, 50 S. Ct. 422, 74 L. Ed. 1051, decided by the Supreme Court May 26, 1930.