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Opinion of the Court

and advertised for sale as replacements on timing gears on various models of automobiles and trucks. The plaintiff paid no taxes on any gears except those of the automotive type.

It will be observed that the timing gears, upon the sale of which a tax was levied, not only were sold for use and used upon automobiles and trucks, but were especially designed and adapted for such use on account of lessening the noise of the operation of the engine. The theory of the plaintiff seems to be that because the timing gears in question could be used interchangeably on gas engines which were not used in automobiles or trucks, the sales thereof were not taxable. We have pointed out in a number of cases that this does not follow. For example, the engine used in certain models of the Ford automobile can be and is used for furnishing power for other machinery, but being primarily designed and especially adapted for use on the Ford car, we think no one would claim that when a new engine was furnished for that car that it was not taxable under the statute under consideration.

The question of whether the tax is applicable must in each case depend on the particular facts in that case, but the general principle is the same. This case is controlled by the rules laid down in Imperial Brass Manufacturing Co. v. United States, No. H-439, decided by this court October 21, 1929 [ante, p. 20]; Walker Manufacturing Co. v. United States, 65 C. Cls. 394 (certiorari denied); Cole Storage Battery Co. v. United States, 65 C. Cls. 164 (certiorari denied); Advance Automobile Accessories Corp. v. United States, 66 C. Cls. 304 (certiorari denied); Edison Storage Battery Co. v. United States, 67 C. Cls. 543; and Borg & Beck Co. v. United States, 67 C. Cls. 242.

Following the principles laid down in these decisions the petition of the plaintiff must be dismissed, and it is so ordered.

GRAHAM, Judge; and BooтH, Chief Justice, concur.

Reporter's Statement of the Case

MARVEL PRODUCTS COMPANY v. THE UNITED STATES

[No. J-123. Decided December 2, 1929. Motion for new trial overruled June 16, 1930]

On the Proofs

Excise tax; automobile parts or accessories; clutch-collar oilers, tappet silencers, shim wedges, gear-shift lever silencers, steeringcolumn silencers, brake intensificrs.-Clutch-collar oilers, tappet silencers, shim wedges, gear-shift lever silencers, steeringcolumn silencers, brake intensifiers, manufactured by plaintiff, designed primarily, advertised, and sold by it wholly for use on automobiles, held to be taxable as parts or accessories for automobiles.

The Reporter's statement of the case:

Mr. Alex. Koplin for the plaintiff.

Messrs. Ralph C. Williamson and Arthur J. Iles, with whom was Mr. Assistant Attorney General Herman J. Galloway, for the defendant.

The court made special findings of fact, as follows:

I. The Marvel Products Company, 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 Ohio, with its principal place of business located at Cleveland, Ohio.

II. During the times hereinafter mentioned plaintiff was engaged in the business of manufacturing and selling clutch-collar oilers, tappet silencers, shims, gear-shift lever silencers, steering-column silencers, and brake intensifiers for automobiles.

III. (a) The clutch-collar oiler is an oil cup to which is attached an elongated tube. Its purpose is to reach a hole or bearing on an engine not otherwise readily accessible. It is used on automobile motors, and can be used on other machinery having bearings.

Reporter's Statement of the Case

(b) A tappet silencer is a device for preventing a clicking noise of a moving part of valves or pistons in automobiles, and in combustion engines, such as automotive motors and motors used for power purposes.

(c) A shim is a wedge-shaped device made of hard rubber, and is used to change the pitch of an axle on a vehicle; it is used on automobiles, and can be used on other vehicles. It is also sometimes used in factories as a wedge.

(d) A gear-shift lever silencer is a device the purpose of which is the elimination of rattle. It provides a third bearing on a gear-shift lever. It is used only on automobiles.

(e) A steering-column silencer is a device made of bronze. It is an adjustable bearing for pressure against a shaft, and acts as a third bearing thereon. It is adapted only for automobiles.

(f) A brake intensifier is made of steel, its purpose being to change the leverage point of the brake in order to give a greater pull with less pressure. It is now only used on automobiles. It can, however, be changed for use on machines producing power, other than automobiles.

IV. All of said devices are described in an illustrated pamphlet, defendant's exhibit "A," produced by plaintiff, upon the front cover of which appears "Added refinements and conveniences for the pleasure car," which exhibit is by reference made a part of this finding.

V. All the various articles upon the sale of which the taxes in question were levied and collected were designed primarily for use on automobiles, and were advertised and sold by plaintiff wholly for that purpose.

VI. Plaintiff made and filed its manufacturer's excise tax returns monthly for the period January, 1923, to February, 1926, 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:

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VII. On July 19, 1926, plaintiff filed its claim for refund No. 354448 of manufacturer's excise tax so paid on tappet silencers in the amount of $1,716.06, on gear silencers in the amount of $325.19, on steering-wheel silencers in the amount of $805.64, on shim wedges in the amount of $115.51 for the period June, 1922, to February, 1926, inclusive, in the amount of $3,063.12, which was duly rejected by the Commissioner of Internal Revenue on July 5, 1927.

VIII. On November 9, 1926, plaintiff filed its claim for refund No. 709 of manufacturer's excise tax so paid on clutch-collar oilers for the period January, 1924, to Decem

Opinion of the Court

ber, 1924, inclusive, in the amount of $603.06, which was duly rejected by the Commissioner of Internal Revenue on July 5, 1927.

IX. On November 9, 1926, plaintiff filed its claim for refund No. 724 of manufacturer's excise tax so paid on clutch-collar oilers for the period January, 1923, to December, 1923, inclusive, in the amount of $1,102.34, which was duly rejected by the Commissioner of Internal Revenue on July 5, 1927.

X. On November 9, 1926, plaintiff filed its claim for refund No. 709 of manufacturer's excise tax so paid on clutchcollar oilers for the period January, 1925, to February, 1926, inclusive, in the amount of $45.71, which was duly rejected by the Commissioner of Internal Revenue on July 5, 1927.

The court decided that plaintiff was not entitled to re

cover.

WILLIAMS, Judge, delivered the opinion of the court: This is an action to recover excise taxes amounting to $4,814.23, paid by plaintiff between the dates of January 1, 1923, and February 26, 1926.

The taxes were levied and collected on the sale by plaintiff of certain articles and devices as follows:

(a) Clutch-collar oilers_‒‒‒‒

(b) Tappet silencers____

(c) Shims--_.

(d) Gear-shift silencers-

(e) Steering-column silencers___ (f) Brake intensifiers---

$1, 751. 11

630.06 2,073.31

149.97

765. 20

100. 25

The taxes in question, which plaintiff claims were illegally collected, were levied and collected under the authority and provisions of section 900 of the revenue act of 1921, and section 600 of the revenue act of 1924.

Section 900 of the revenue act of 1921, 42 Stat. 227, provided:

"That from and after January 1, 1922, 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:

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