
    MANTLE LAMP CO. OF AMERICA v. THE UNITED STATES
    [No. E-361.
    Decided April 16, 1928]
    
      On the Proofs
    
    
      Excise tax; sec. 900(14), reverme act of 1918; heat-insulated jars; absence of vacuum. — Heat-insulated jars, manufactured by the plaintiff, using ground cork in place of a vacuum, held to be “ thermostatic containers ” and subject to the excise tax of section 900(14), revenue act of 1918.
    
      The Reporter’s statement of the case:
    
      Mr. Marvin Farrington for the plaintiff. Mr. W. H. F. Millar was on the brief.
    
      Mr. Joseph H. Sheppard, with whom was Mr. Assistant Attorney General Herman J. Galloway, for the defendant.
    The court made special findings of fact, as follows:
    I. Plaintiff herein, the Mantle Lamp Company of America, Inc., is and at the times hereinafter mentioned was an Illinois corporation, with its principal office in Chicago, engaged in the manufacture and sale of heat-insulated receptacles of the nonvacuum type. Said company has been engaged for many years in the manufacture and sale of other articles, such as lamps, radio equipment, etc., not involved in this controversy.
    II. On or about the first day .of May, 1919, the Commissioner of Internal Eevenue, by and with the approval of the Acting Secretary of Treasury of the United States of America, promulgated and published Eegulatiops 47 relating to excise taxes on sales by the manufacturer under section 900 of the said revenue act. Article 26 of said regulations reads as follows:
    “Art. 26. Thermostatic containers. — The tax is five per centum of the manufacturer’s selling price of the enumerated articles. The tax attaches only to the sale of container^ using the vacuum principle of heat or cold retention. Thus fireless cookers are not taxable.”
    
      III. In early January, 1920, plaintiff began the manufacture and sale of heat-insulated jars, vessels, or receptacles of the nonvacuum type. It was the first to successfully produce and place on the market a heat-insulated receptacle of the nonvacuum type, known a.s Aladdin Thermal ware Jars. Plaintiff’s jars were and are constructed with an inner earthenware container, which is surrounded with an outer metal jacket, spaced apart from the container approximately one inch. The two articles, the inner container and the outer jacket, are joined and sealed together at their upper extremity or necks. The one-inch space between the inner container and the outer metal jacket is packed with ground cork. The completed receptacle is provided with a bail, grip, glass stopper, and cap threaded to engage a threaded portion of the outer jacket and hold the stopper in position.
    IV. The difference in insulating efficiency between the thermal conductivity of a vacuum and ground cork is at the ratio of 70 to 1.
    V. On or about December 27, 1920, the Secretary of the Treasury of the United States approved amended regulations promulgated by the Acting Commissioner of Internal 'Revenue, the same being Regulations 47 (revised December, 1920), relating to the excise taxes on sales by the manufacturer under section 900 of the revenue act as set forth in Finding II hereof.
    Article 26 of the said amended regulations reads a(s follows :
    “ART. 26. Thermostatic containers. — The tax is five per centum of the manufacturer’s selling price of the enumerated articles. All sales by manufacturers of thermostatic containers are taxable whether the property of thermostatic retention is obtained by insulation or by the vacuum principle. Fireless cookerjs, ovens, stoves, refrigera,tors, and like articles are not taxable under this section.”
    VI. Pursuant to demand by the collector of internal revenue the plaintiff, in July, 1921, prepared and filed returns showing the manufacture and sales of Aladdin Thermalware Jars for the period January 1, 1920, to June 1, 1921, in amount of $145,323.60. Thereafter the collector of internal revenue at Chicago, Ill., assessed a tax against the plaintiff on said sales of $7,266.18, together with 5% penalties of $363.30 and interest in amount of $1,750.14, aggregating $9,379.62. Thi,s sum was paid to the said collector under date of January 31, 1923. On October 13, 1923, the plaintiff paid a further item of interest of $198.15 to the collector, and on April 21,1924, a 25% penalty amounting to $1,457.71 and interest in the sum of $584.41, aggregating $2,042.12. All of the taxes, penalties, and interest were paid under protest after they had been duly assessed.
    VII. On June 27, 1923, plaintiff filed a claim for refund of the $9,379.62 paid on January 31, 1923, which claim was rejected by the Commissioner of Internal Revenue on October 10, 1923. Claim for refund of the $2,042.12 paid on April 21, 1924, was filed September 30, 1925, and rejected on February 4,1926. No claim for refund covering the $198.15 paid on October 13, 1923, was filed by the plaintiff.
    The court decided that plaintiff was not entitled to recover.
   Booth, Judge,

delivered the opinion of the court:

This tax case arises under sections 900 and 903 of Title IX of the revenue act of 1918, 40 Stat. 1057,1122, as follows ;

TITLE IX-EXCISE TAXES
• “ Sec. 900. That there shall be levied, assessed, collected, and paid upon the following article 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—
# ífc sfc
“(14) Thermos and thermostatic bottles, carafes, jugs, or other thermostatic containers, five per centum. * * *
“ Sec. 903. That every person liable for any tax imposed by section 900, 902, or 906 shall make monthly returns under oath in duplicate and pay the taxes imposed by such sections to the collector for the district in which is located the principal place of business. Such returns shall contain such information and be made at such times and in such manner as the commissioner, with the approval of the Secretary, may by regulations prescribe.
“ The tax shall, without assessment by the commissioner or notice from the collector, be due and payable to the collector at the time so fixed for filing the return. If the tax is not paid when due, there shall be added as part of the tax a penalty of five per centum, together with interest at the rate of one per centum for each full month, from the time when the tax became due.”

The plaintiff manufactures and markets what it styles an “Aladdin Thermalware Jar.” The vessel is composed of an “ inner container, having a single wall surrounded by material resistant to heat conductivity (usually ground cork) and the whole is encased in a metal jacket, both containers being-joined and sealed at the neck.” It is apparently conceded that the only difference between the plaintiff’s jar and the well-known thermos bottle is that in the latter thermostatic retention is obtained by the vacuum principle, whereas in plaintiff’s jar thermostatic retention is obtained upon a non-yacuum principle. Both vessels are designed for the same purpose and both function in the same way. One may afford more and longer preservation of the contents than the other, but beyond question each is intended for the same demand and finds sale among exactly the same class of users.

Plaintiff seeks to restrict the language of the taxing act to a particular article described by a trade-mark term. We think this position is untenable. Congress was applying to this source of revenue a tax burden, a tax known as a luxury tax, and in so doing was using the well-established meaning and notoriously known article of commerce which, by reason of its peculiar construction, would maintain thermostatic retention of the contents put into the article.

We deem it unnecessary to indulge a technical discussion of the differences in construction between thermostatic containers. Congress was using the term in a generic sense and did not intend to exempt a mere change in form which served the same purpose.

The plaintiff’s jar falls within the meaning and intent of the law, and we think the petition should be dismissed. It is so ordered.

Moss, Judgey GRAham, Judge; and Campbell, Chief Justice, poncur.

GREEN, Judge, took no part in the decision of this case.  