
    R. E. FUNSTEN CO. v. THE UNITED STATES
    [No. F-80.
    Decided April 2, 1928]
    
      On the Proofs
    
    
      Excise tax; tax on candy; stuffed dates. — Stuffed dates, prepared by removing tbe seed and inserting in the place thereof a half of a kernel of a pecan and then rolling the date in or sprinkling it with granulated sugar, are not candies, and are not subject to the excise tax provided in subdivisions (9) and (6), respectively, of section 900 of the revenue acts of 1918 and 1921.
    
      The Reporter's statement of the case:
    
      Mr. George M. Wihneth for the plaintiff.
    
      Mr. George H. Foster, with whom was Mr. Assistant Attorney General Herman J. Galloway, for the defendant.
    The court made special findings of fact, as follows:
    I. Plaintiff, R. E. Funsten Company, is a corporation organized under the laws of the State of Missouri, with its principal place of business at St. Louis, Missouri.
    II. Plaintiff is, and for a long time has been, engaged in preparing, packing, and selling, among other products, stuffed dates; said stuffed dates were prepared by removing the seeds or pits therefrom and inserting in their place, in each date, a half of a kernel of a pecan and then rolling the dates in or sprinkling them with granulated sugar to absorb their natural juice and prevent them from adhering or sticking together. The dates so prepared were packed and sold in containers or packages of four different sizes, to wit, in boxes containing seven and fifteen pounds and in cardboard folding cartons holding two and ten ounces.
    III. Between the dates of July 1, 1921, and December 31, 1923, there were levied, assessed, and collected from plaintiff, and paid by plaintiff to the United States collector of internal revenue at St. Louis, taxes in the amount of $8,242.49 under the provisions of subdivision (9) of section 900 of the revenue act of 1918 and subdivision (6) of section 900 of the revenue act of 1921 on the sale by plaintiff of so-called stuffed dates prepared, packed, and sold as hereinbefore described.
    IV. Plaintiff on January 21, 1925, filed claim for refund of said taxes amounting to $8,242.49 with the Commissioner of Internal Bevenue, which said claim was allowed for $885.19, plus interest amounting to $93.12, representing tax with interest paid on the sale of stuffed dates sold in seven and fifteen pound boxes, and rejected for $1,357.30, which sum represented tax paid by plaintiff on the sale of said stuffed dates sold in the smaller containers of two and ten ounces.
    V. The regulations of the Commissioner of Internal Beve-nue defining candy were adopted after receipt of a copy of a definition of candy adopted by the National Confectioners’ Association after the passage of the revenue act of 1918. This is an association of companies engaged in the manufacture and preparation of candy and other confections.
    VI. Stuffed dates (packed as the product here taxed was packed) are dealt with in commerce and sold by candy dealers, both wholesale and retail. Plaintiff’s product, when packed in cartons containing 7 and 15 pounds, respectively, was not taxed as candy.
    The court decided that plaintiff was entitled to recover $7,357.30 with interest from December 31, 1923, until date of judgment.
   Campbell, Ghief Justice,

delivered the opinion of the court:

This is a suit to recover taxes paid, which the Commissioner of Internal Eevenue refused to refund. The statute under which the taxes were exacted is expressed in the revenue act of 1918, 40 Stat. 1122; as follows:

“ There shall be levied, assessed, collected, and paid upon the following articles * * * a tax equivalent to the following percentages' * * * (9) Candy, 5 per centum.”

The regulations of the commissioner promulgated in May, 1919, defined “ candy ” as follows:

“Art. 22. Candy — Candy within the meaning of the act includes chocolate creams, bonbons, gumdrops, jelly drops, jelly beans, imperials, caramels, stick candy, lozenges, taffies, candy kisses, wafers, fudges, or Italian creams, nougats, peanut brittle, sugared almonds, chocolate-covered fruits and nuts, glacé or candied fruits and nuts, popcorn, and other cereals or cereal products mixed with or covered with molasses, sugar or other sweetening agent, hard candies, plain and chocolate-covered marshmallows, candy cough drops, and sweetened licorice not taxed as cough drops, sweet chocolate and sweet milk chocolate whether plain or mixed with fruits or nuts; and all similar articles however designated.”

The question presented is whether stuffed dates are taxable as candy under the act and regulations. The dates were prepared for market by a process described as follows: The seed of each date was removed and in its place the half of the kernel of a pecan was inserted. The dates were then sprinkled with granulated .sugar to prevent them adhering or sticking together when packed. No process was used for the purpose of candying the sugar or forming a glacé. When prepared, as stated, the dates were packed in containers of different sizes and sold in boxes of seven and fifteen pounds and also in cardboard cartons of two sizes containing two ounces and ten ounces of dates. They were all similarly prepared. The commissioner ruled that the dates sold in the larger containers of seven and fifteen pounds were not taxable as candy and the Government concedes th.is is correct. The Government also concedes that the use of the sugar for the purpose mentioned does not make the product candy but insists that the dates packed in the smaller containers are candy within the meaning of the taxing act. The reasoning that makes the line of separation between dates and candy lie in the size of the containers .is not easy to follow. If an article in a small box be candy it would seem that more of the same article in a large box would also be candy. The regulation does not include dates, such as we find here, -unless we give a very unusual meaning to its concluding clause, “ and all similar articles however designated.” It mentions candies and a number of candied articles, fruits, nuts, etc., but candied ” .involves generally a treatment of sugar or molasses by the application of heat. The phrase in the regulation must refer to the kind of things already mentioned. The definitions by the lexicographers do not confuse candy with fruit, such as the date. Candy is one of the confectioneries, but all confections are not candy. The sale of the dates, prepared as shown here, in small containers, if conceded to be sold as confections does not constitute a sale of candy. The tax in question is an excise tax laid on various articles and things, among them candy. The quantitative method of determining the character of this article is not what' the statute contemplates. The word should be interpreted according to its clear import. It has been declared that in statutes levying taxes the literal meaning of the words employed is most important because such statutes are not to be extended by implication beyond the clear import of the language used. Merriam case, 263 U. S. 179, 187; Gould v. Gould, 245 U. S. 151, 153. The plaintiff should have judgment. And it is so ordered.

Moss, Judge; Graham, Judge; and Booth, Judge, concur.  