Mills Novelty Co. v. United States

LITTLETON, Judge

(concurring).

It appears that slot machines operated and intended to be operated entirely as a game of chance were intended to be included in the articles taxed under paragraph 5 of section 900 of the 1918 Revenue Act (40 Stat. 1122), when it is noticed that in paragraph 16 of the section slot-device vending machines and slot-device weighing machines are specifically taxed by name, the vending machines being taxed at 5 per cent, a'nd the weighing machines at 10 per cent.

The slot machines of chance serve no useful commercial purpose, and did no more than to provide for those so minded a means to play a game of chance, to take a gamble of losing all, or winning more than was staked on the chance. The fair inference is that Congress intended all slot machines to be taxed, but did not mention them along with slot-vending machines and slot-weighing machines, since under the term “games” in paragraph 5 of section 900 they were to be taxed at 10 per cent. The use of the slot machine in question was manifestly a game within the broad meaning of that term, and I think Congress used the words “games ana parts of games” in their broad sense, and intended to include in paragraph 5 all of those articles, such as this, commonly used for the purpose of sport, pastime, or gambling.

In this case we are not concerned with the question whether the slot machine here involved was included under the general concluding clause of section 900, “and all similar *479articles commonly or commercially known as sporting goods,” since the slot machine in question is taxable under the specific classification of “games and parts of games.” The general provision just referred to does not limit the classification of all which precedes it, but limits the articles that may be taxed under it in addition to those articles previously classified in the paragraph which are commonly and commercially known as sporting goods. In other words, the term “commonly or commercially known as sporting goods” would limit articles to be taxed under it, which had not been previously specifically designated, to those generally known as “sporting goods,” but it does not exclude from taxation an article which dearly comes within a specific classification previously made in this section.

The conclusion that this slot machine was taxable under paragraph 5 of section 900 is strengthened by the fact that in the Revenue Act of.1924, after the tax on the articles specified in paragraph 5 of section 900 of the Revenue Act of 1918 had been repealed, the. slot machine with which we are here concerned was included and taxed under subdivision 8 of section 600 (26 USCA § 881 note), along with coin-operated vending and weighing machines. In conference report No. 844, 68th Congress, 1st session, on the revenue bill of 1924, it was stated by the managers on the part of the House, on page 28, with reference to Senate amendment 187 to section 600 as follows: “The House bill imposed a tax upon the sale of automatic slot-device vending machines of 5 per cent, and a tax of 10 per cent upon the sale of automatic slot-device weighing machines. The Senate amendment strikes out this provision and inserts a tax of 10 per cent upon coin-operated devices, coin-operated machines, and devices and machines operated by any substitute for a coin, and also a tax of 10 per cent on mah-jongg and similar tile sets and component parts thereof. The House recedes with an amendment making the rate of tax 5 per cent upon the coin-operated devices,” etc. In other words, when it was observed that by repeal of the tax imposed by section 900 (5) of the Revenue Act of 1918 on games the slot machines with which we are here concerned were not taxed, the Congress proceeded to tax them along with slot-device vending and weighing machines.