dissenting: I agree with what Judge Johnson says in his dissent, but in addition it seems to me that the reference in the majority opinion to commission on sales, overhead, and other expenses and customs duties as offering parallel to the 10 per cent Federal excise tax here involved, is not sound. Commissions, “overhead and other expenses,” and customs duties incurred by the seller prior to the sale would, of course, enter into the cost to him and, therefore, into the value of the ring at the time of sale. But we have here involved an added $5,800, being a tax imposed upon jewelry “sold at retail.” Until there is a sale, there is no tax, and it is “10 per' centum of the price for which so sold.” Sec. 2400, I. B.. C. Clearly the value of the ring at the time of sale did include previous expenses, including taxes, but did not include the 10 per cent here considered. Did the property take on, as of the date of the gift a few days later, additional value, which should be taxed, because of the addition of the 10 per cent tax? The effect under the majority view is that the Government is taxing upon a tax which it has just required the purchaser of the ring to pay, in addition to the value at the time of purchase. I do not think that additional value after the purchase is demonstrated by the mere tax. On the contrary, it seems to me that the record affirmatively demonstrates that the addition is a tax and not an appreciation in value. I would hold that the sale, about a week earlier than the gift, showed the value, and I therefore dissent.
ARUNDELL and JOHNSON, JJ., agree with this dissent.