This is the latest in the succession of suits brought by this plaintiff to recover excise taxes exacted from it by the Government in connection with the plaintiff’s manufacture and sale of electric refrigerators. The first of the cases is reported in 121 F.Supp. 932, 128 Ct.Cl. 465. In that opinion, which was on the merits, the plaintiff’s five year warranty of the refrigerating unit in its refrigerators, the so-called “Five Year Protection Plan”, is described in detail and its history is recited. The court held that the actual expense of the plaintiff’s repair and replacement of these units in satisfaction of its warranty was an “allowance” within the meaning of section 3443(a) (2) of the Internal Revenue Code of 1939, 26 U.S.C.A. § 3443(a) (2), and that the plaintiff could recover on that basis. Two judges, dissenting in part, would have held that the five dollar charge made by the plaintiff for the five year warranty was not a part of the price of the refrigerator and was therefore entirely exempt from the excise tax.
In the plaintiff’s second ease, No. 49428, decided on the merits November 7, 1956, the court’s decision was the same as in the first. Chief Judge Jones and Judge Laramore concurred, but with the express statement that “recovery in such cases is and should be limited to the cost incident to a protective plan that goes beyond the customary guarantee or service applicable in the trade generally.”
In the instant case the court has made a finding that the five year warranty of refrigerating units has been customary in the trade generally during the years involved in all of the plaintiff’s suits. It thus becomes evident that the concurrence of Chief Judge Jones and Judge Laramore in the second case resulted from matters regarded by them as vital to the decision but about which no facts appeared of record in either the first or second case.
*856It will be remembered that the origr inal General Motors case, decided in 1954, had not directly raised the issue of the custom in the trade as to the five year warranty.' The plaintiff’s brief and the court’s finding 17, in that case, referred only to the fact that the one year warranty had become standardized in the refrigeration industry. While the record did not show clearly that the extended warranty for the sealed units was not adopted by the trade, the clear implication of the few references in the record is to the effect that it was not the custom in the trade generally. Therefore, the issue in the present case and the issue in the first General Motors case are different, both factually and legally, a matter which we will discuss more fully below.
In the plaintiff’s third case, No. 55-56, Ct.Cl., 147 F.Supp. 739, decided January 16, 1957, the plaintiff sought to press the court’s previous decisions to what the plaintiff insisted was their logical conclusion. It urged that the cost of fulfilling its one year warranty of all parts of its refrigerators should be treated as an “allowance” under section 3443(a) (2). It also made the same contentions as to its five year warranty of its refrigerating units which it had made in the earlier cases. The court rejected the plaintiff’s contention as to the one year warranty, and adopted the plaintiff’s original contention as to the five year warranty of the refrigerating unit. It held that the five dollars charged for the five year warranty was not a part of the price of the refrigerator and hence was not subject to the excise tax. Judge Littleton, concurring in part and dissenting in part, would have adhered to the court’s first decision based on the allowance theory, because he thought that the doctrine of collateral estoppel required that decision.
The writer of this opinion dissented, taking the position that the price paid for warranties in connection with sales of refrigerators was a taxable part of the purchase price, and that the cost of fulfilling the warranties was not an “allowance” within the meaning of section 3443(a) (2). The latter position, was, of course, a departure from his earlier views.
The court in the plaintiff’s third case referred the case to a trial commissioner of the court to take evidence only on the question of the reasonableness of the plaintiff’s five dollar charge in relation to the actual cost of fulfilling the warranty. On June 12, 1957, the trial commissioner was also ordered to take evidence on the question of whether the five year warranty was customary in the trade during the years in question.
As stated above, the court has now made a finding of fact that the five year warranty in question is customary in the trade, and has been so almost from the time that the plaintiff introduced it. The fact which was not made to appear in the earlier cases, but which the Chief Judge and Judge Laramore regarded as vital, is now a fact of record. A majority of the court is therefore of the opinion that the plaintiff is not entitled to recover, because the price paid for these warranties was a taxable part of the purchase price of the article sold.
The instant case might appear to suggest a problem of collateral estoppel. The effect of the application of the doctrine would be to set the plaintiff apart from its competitors and from all other taxpayers similarly situated. Such a doctrine of “repose” would have to have a truly compelling reason behind it.
The Supreme Court of the United States in Commissioner of Internal Revenue v. Sunnen, 333 U.S. 591, 68 S.Ct. 715, 92 L.Ed. 898, makes plain its view that the doctrine of collateral estoppel is to be sparingly used in tax cases. The Court said, 333 U.S. at page 601, 68 S.Ct. at page 721:
“And if the very same facts and no others are involved in the second case, a case relating to a different tax year, the prior judgment will be conclusive as to'the same legal issues which appear, assuming no intervening doctrinal change. But if.' *857the relevant facts in the two cases are separable, even though they may be similar or identical, collateral estoppel does not govern the legal issues which recur in the second case. Thus the second proceeding may involve an instrument or transaction identical with, but in a form separable from, the one dealt with in the first proceeding. In that situation, a court is free in the second proceeding to make an independent examination of the legal matters at issue.”
As we have stated above, the issue in the original General Motors decision and the issue presently before the court are different. The Sunnen case in 333 U.S. at page 599, 67 S.Ct. at page 720, makes it clear that the doctrine of collateral estoppel shall only be applied when the issues remain “static, factually and legally.” That is not our case.
The writer of this opinion expressed his views on the collateral estoppel question in Engineer’s Club of Philadelphia v. United States, 42 F.Supp. 182, 95 Ct.Cl. 42, which was cited with apparent approval in Sunnen, 333 U.S. at page 601, 67 S.Ct. 715.
The plaintiff’s petition will be dismissed.
It is so ordered.
JONES, Chief Judge, and LARA-MORE, Judge, concur.