Berg Bros. Manufacturing Co. v. United States

67 Ct. Cl. 165, 7 A.F.T.R. (P-H) 9005, 1929 U.S. Ct. Cl. LEXIS 380, 1929 WL 2644

Opinion

Sinnott, Judge,

delivered the opinion of the court:

Plaintiff in this suit seeks to recover the sum of $11,370.49, manufacturer’s excise tax paid during the period from May, 1922, to February, 1926, on timers manufactured by plaintiff.

The sole question involved is whether the sold by plaintiff is taxable under section 900 of the revenue act of 1921, 42 Stat. 227, 291, arid section 600 of the revenue act of 1924, 43 Stat. 253, 322. The timer made by plaintiff may be used on any Ford engine. They may be used without change on the engine used in either the Ford tractor or automobile. The only difference in the timer made by plaintiff and that made by the Milwaukee Motor Products, Inc.,, called the Milwaukee timer, is in the case, the Milwaukee timer being in a bakelite case, while the timer made by plaintiff is in a steel case.

In the case of the Milwaukee Motor Products, Inc., v. United States, No. H-40, decided by this court on October 22, 1928 [66 C. Cls. 295], involving the revenue acts of 1918 and 1921, and the revenue act of 1924, the two latter acts being the same acts as are involved in this case, we held that the Milwaukee timers were not taxable under said acts. In the Milwaukee Motor Products, Inc., case, supra, we found that Ford engines were used on light tractors, stationary power plants, farm cultivators, ice-harvesting equipment, bean-cleaning equipment, farm power plants, concrete mixers, fire-fighting apparatus, air compressors, locomotive equipment, hoists, shop mules, marine engines, street flushers, pumping, light grinding, and saw equipment; that the engines used on the Ford tractors were used on stationary power plants, road graders, snow plows, road rollers, hoists, boats, saws, sprinklers, street sweepers, and locomotive equipment.

It is apparent that plaintiff’s timers were not specially designed nor primarily adaptable only for use on or in connection with automobiles. The Milwaukee Motor Products, Inc., case, supra, is decisive of the present case. See also Atwater Kent Manufacturing Co. v. United States, 62 C. Cls. 419; Wells Manufacturing Co. v. United States, No. H-44, decided by this court October 22, 1928 [66 C. Cls. 283].

Judgment should be awarded in favor of the plaintiff.. It is so ordered.

Green, Judge; Moss, Judge; Graham, Judge; and Booth, Chief Justice, concur.