Whirlwind Manufacturing Company v. United States
| Citation | 344 F.2d 153 |
| Decision Date | 07 April 1965 |
| Docket Number | No. 21712.,21712. |
| Parties | WHIRLWIND MANUFACTURING COMPANY, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Billy B. Goldberg, Alfred C. Schlosser, Houston, Tex., for appellant.
Donald W. Williamson, Atty., Dept. of Justice, Louis F. Oberdorfer, Asst. Atty. Gen., Dept. of Justice, Lee A. Jackson, Atty., Dept. of Justice, Washington, D. C., Woodrow B. Seals, U. S. Atty., James
R. Gough, Asst. U. S. Atty., Houston, Tex., for appellee.
Before WHITAKER,* Senior Judge, and RIVES and JONES, Circuit Judges.
This is an action for the refund of an excise tax, imposed under section 4121 of the Internal Revenue Code of 1954, section 112 of the Excise Tax Technical Changes Act of 1958 (P.L. 85-859, 72 Stat. 1275), on "articles of the household type," including, among other enumerated articles, "Electric direct motor-driven and belt-driven fans and air circulators."
During the taxable period in question, the appellant manufactured and sold under the brand name of "Sea-Breeze Industrial Fans," electric belt-driven fans with model numbers A24V, A24E, A30V, A30E, A33V, A36V, A36E, A42V, A42E, A48V, A48E, A48E-1, A48E-1.5, and A60E. The numerical part of the model number designates the diameter size of the fan in inches. The V models and E models are essentially the same, the notable difference being in the construction of each to accommodate two different kinds of mountings. The smallest models (A24V and A24E) are capable of moving 5,200 cubic feet of air per minute, while the largest model (A60E) has a capacity of 32,000 cubic feet of air per minute. The different models are powered by electric motors of various sizes ranging from one-fourth horsepower for the 24-inch models to one and one-half horsepower for the A48E-1.5 and A60E models.
Installation of each of the models requires a number of steps, including physically anchoring the fan to the structure at the desired place, attaching switches and appropriate wiring by an electrician, and cutting exhaust and intake openings, which may be screened by shutters at the option of the owner; but the District Court found that all of this was not cumbersome and could be done by an experienced person in about an hour. After the fans have been installed, they become a part of the realty for certain purposes under state law.
Thinking that some of the above-mentioned articles might be held to be taxable as electric belt-driven fans of the household type, appellant filed a quarterly Federal excise tax return for the taxable period ending September 30, 1961, showing a tax thereon in the amount of $2,515.37, which was paid with the return; but at the same time taxpayer filed a claim for refund for the entire amount of taxes paid. After six months had passed from the filing of the claim for refund, appellant instituted this suit in the District Court for recovery of the $2,515.37 paid.
The case was tried before the court without a jury on November 14, 1963, after which, at the request of the court, both sides filed briefs.
The Government conceded in the District Court that models A48E-1.5 and A60E in the attic fan series were not suitable for household use, and therefore not taxable, both because of their weight and lack of sufficient guards and also because their capacity is substantially greater than is necessary in the size home in which attic fans are used for cooling.
On February 13, 1964, the District Court filed its findings of fact and conclusions of law holding that the models in dispute were subject to the excise tax imposed by section 4121 of the Internal Revenue Code of 1954 and, accordingly, entered judgment for the Government, from which appellant appeals.
The Act does not define "articles of the household type," but Treasury Regulation 48.4121-2 does. It defines them as follows:
(a) Articles of the household type. The term "articles of the household type" includes all articles enumerated in section 4121 which have an actual, practical, commercial fitness, or are specifically designed and constructed, for household use.
The Regulation also defines "electric fans and air circulators," as follows:
(d) Electric fans and air circulators. The term "Electric direct-motor and belt-driven fans and air circulators" includes all types of direct-motor and belt-driven fans and air circulators that provide movement or circulation of air, whether for intake or exhaust or for use within an enclosure, if they are designed and constructed to be operated as independent units. (26 C. F.R. Sec. 48.4121-2 (1960 Rev.))
The initial question to be considered is whether the District Court erred in its conclusion of law that the definition of the phrase "articles of the household type," contained in Treasury Regulation 48.4121-2(a), is a reasonable and lawful interpretation of that phrase as it is used in section 4121 of the 1954 Code. If so, it is entitled to respectful consideration and will not be overturned except for weighty reasons. See, e. g., Fawcus Machine Co. v. United States, 282 U.S. 375, 378, 51 S.Ct. 144, 75 L.Ed. 397 (1930).
The words "articles of the household type" are neither unusual, scientific, nor words of art and, therefore, are to be given their ordinary meaning. The regulation, which provides that "The term `articles of the household type' includes all articles enumerated in section 4121 which have an actual, practical, commercial fitness, or are specifically designed and constructed, for household use," italics ours seems to us to do just that. If the article is either actually fit for household use as a practical matter or, in the alternative, if it is specifically designed and constructed for that use, then it is an "article of the household type." It could hardly be better defined.
Appellant says it cataloged its fans as "industrial fans," not "household" fans; but, of course, its own designation of them cannot overturn a valid Treasury Regulation.
It also says that the Census Bureau required it to include within the category of "industrial propeller fans," attic fans of all...
To continue reading
Request your trial
-
United States v. California Portland Cement Company
...1024, 87 S. Ct. 742, 17 L.Ed.2d 673 (1967); United States v. Fisher, 353 F.2d 396, 398-399 (5th Cir. 1965); Whirlwind Mfg. Co. v. United States, 344 F.2d 153, 156 (5th Cir. 1965). See also Nutt v. Commissioner of Internal Revenue, 351 F.2d 452, 454 (9th Cir. In the instant case, we conclude......
-
Redwing Carriers, Inc. v. Tomlinson
...den., 385 U.S. 1024, 87 S.Ct. 742, 17 L.Ed.2d 673; cf. Estate of Willett v. C. I. R., 5 Cir. 1966, 365 F.2d 760; Whirlwind Mfg. Co. v. United States, 5 Cir. 1965, 344 F.2d 153. When, as here, the regulation has long continued without substantial change, applying to unamended or substantiall......
-
U.S. v. Levy
...1965, 381 U.S. 68, 85 S.Ct. 1301, 14 L.Ed.2d 223; Werner v. United States, 7 Cir., 1959, 264 F.2d 489; Whirlwind Manufacturing Company v. United States, 5 Cir., 1965, 344 F.2d 153.3 Winters v. People of the State of New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840 (1948); Watkins v. Unite......
-
Anderson v. CIR
...Fawcus Mach. Co. v. United States, 282 U.S. 375, 378, 51 S.Ct. 144, 145, 75 L.Ed. 397 (1931); see Whirlwind Manufacturing Company v. United States, 5 Cir., 1965, 344 F.2d 153, 156. The regulations here in question have no such defect. There is support for them in the legislative history of ......