(concurring in part and dissenting in part).
Plaintiff sues to recover certain manufacturers’ excise taxes for the period January 1, 1945 through August 31, 1951, (1) attributable to a $5 charge which plaintiff made in the sale of each refrigerator for a warranty known as the Five Year Protection Plan, and (2) attributable to amounts expended in fulfilling its obligations under a one-year warranty for which no separate charge in any amount was made.
The Five Year ■ Protection Plan covered only the sealed unit of the refrigerator and its purchase was mandatory except to certain purchasers of multiple units. Plaintiff has two grounds on which it claims a right to recover excise taxes paid on this $5 item: (1) that it was a separate charge in the nature of insurance and excludable under Section 3441(a) of the Internal Revenue Code, 26 U.S.C.A. § 3441(a); (2) that in any event, sums expended by plaintiff in fulfilling the obligations of the warranty are allowances within the meaning of Section 3443(a) (2) of the Code and all excise taxes paid on such amounts should be refunded.
The one-year warranty covered the entire product including the sealed unit, and no separate charge was made for such warranty. Plaintiff’s ground for seeking to recover excise taxes in connection with this one-year warranty is that amounts expended by plaintiff in fulfilling its obligations under this warranty are allowances within the meaning of Section 3443(a) (2) of the Code.
The majority of the court holds that the Five Year Protection Plan warranty falls within the exclusion granted by Section 3441(a) of the Code, and that the price paid for it is a charge to be excluded from the price and not subject to excise tax provided for in- Section 3405 of the Code. However, instead of permitting plaintiff to recover all excise taxes paid on each $5 warranty sold in the period in suit, the majority remands the case to a commissioner of the court to determine the “reasonableness”, of the $5 charge, indicating that recovery will be allowed only to the extent that.such charge was reasonable. Assuming .that the majority is correct, and I think it is,, in holding that the $5 paid , for the Five Year Protection Plan was in the nature of a charge excludable from-the price of the refrigerator and therefore not subject to excise tax, I can see no justification in the law for permitting an exclusion in an amount less than the charge made. Either the charge in question is one for a service, in which event the law makes it entirely excludable, • or it is a part of the sales price of the refrigerator and not excludable under Section 3441(a). The only reason I can think of for inquiring into the' reasonableness of the charge is to détermine whether or not it is in fact a separaté charge for services at all, or is merely a device for increasing the sales price. As far as I can determine, the latter possibility has not been seriously entertained by anyone.
The identical issues relative to the taxability under the excise tax law of the Five Year Protection Plan has twice been decided by this court in suits. involving the same parties as herein. General Motors Corp., etc. v. United States, 121 F.Supp. 932, 128 Ct.Cl. 465; General Motors Corp., etc. v. United States, No. 49428, Ct.Cl., 146 F.Supp. 220. The only difference in the three cases is the periods involved. In the two previous decisions the. majority of the court held that the $5 charge made by plaintiff for the Five Year Protection Plan was not separate from the sales price of the refrigerator and was .therefore taxable under Section 3405 of the Code, but that plaintiff was entitled *744to a credit or refund under Section 3443 (a) (2) of the Code for amounts expended in fulfilling such five year warranty. The first decision, 121 F.Supp. 932, 128 Ct.Cl. 465, was before the Supreme Court on cross motions for certiorari and both motions were denied on February 14, 1955, 348 U.S. 942, 75 S.Ct. 363, 99 L.Ed. 737. In both decisions we rejected plaintiff’s contention that the $5 separate charge was excludable under Section 3441(a), and the Government’s contention that amounts spent in fulfilling its obligations under the warranty were not allowances within the meaning of Section 3443(a) (2) of the Code. Although I joined with Judge Whitaker in his dissent in the first General Motors case, I followed the majority opinion of General Motors in Westinghouse Electric Corporation v. United States, Ct.Cl., 140 F.Supp. 565.
I am of the opinion that this is a case in which the doctrine of collateral estoppel should be applied. The doctrine, an outgrowth of the doctrine of res judicata, and designed to prevent continued litigation of the same issues even though a different cause of action may be involved, is often applied in tax cases where the same legal issue has been decided for one tax year and a new cause of action involving the same issues is presented for subsequent tax years, City of New Orleans v. Citizens’ Bank, 167 U.S. 371, 17 S.Ct. 905, 42 L.Ed. 202; Tait v. Western Md. Ry. Co., 289 U.S. 620, 53 S.Ct. 706, 77 L.Ed. 1405. In Commissioner of Internal Revenue v. Sunnen, 333 U.S. 591, 68 S.Ct. 715, 92 L.Ed. 898, the Supreme Court had occasion to. review the law on collateral estoppel, especially in tax cases, and it held that a judgment in a prior suit operates as an estoppel respecting those matters litigated and determined and. upon which the judgment was rendered. The doctrine was limited, however, to situations where there is no subsequent modification of the facts in the intervening years, and no modification of the controlling legal principles. The court pointed out that if there had been a change in facts or in the controlling legal principles, an injustice would result as to the party against whom the estoppel operated. The doctrine of collateral estoppel was recently applied by the Tax Court in T. M. Stanback v. Commissioner, Nos. 51748-51751, decided October 8, 1956. See also Southern Maryland Agricultural Ass’n v. United States, Ct.Cl., 147 F.Supp. 276. The doctrine is applied even where the court in a subsequent suit believes its earlier decision to have been reached on an erroneous view of the law, as here. United States v. Moser, 266 U.S. 236, 45 S.Ct. 66, 69 L.Ed. 262.
In the instant case there has been no change in the facts relative to the Five Year Protection Plan nor has there been any contrary legal principle announced by this or any other court.
Accordingly I would hold, as plaintiff suggests we should in its latest brief, that the issue involving the application of the excise tax to the Five Year Protection Plan has twice been decided by this court, and, in the absence of any change in the facts or the law, we should decide the issue as we have in the two earlier decisions.
In connection with the one-year standard warranty, I do not think the doctrine of collateral estoppel applies because the facts or terms of that warranty are materially different from those of the Five Year Protection Plan. I concur with the majority that plaintiff is not entitled to an allowance under Section 3443(a) (2) of the Code for amounts spent to fulfill its obligations under that one-year warranty. I am of the opinion that this conclusion may be reached even if the court had felt itself bound by its previous decision on the Five Year Plan, because the one-year standard warranty has never been in issue before this court.