The opinion
DAVIS, Judge
(dissenting):
If we look only at the skin of the automotive-tax statute and regulations, we are forced, I think, to rule that plaintiff’s equipment is covered. Section 4061(b) of the 1954 Code levies the tax on sales of “parts and accessories” of trailers and semitrailers. The regulation (Treas.Reg. § 40.4061 (b)-2) includes within “parts and accessories” articles primarily designed to improve a truck (or chassis) or to be attached to it in order to add to its utility, whether or not the article is essential to operation or use. The first example given is an “automobile air conditioner." From the taxpayer’s own affidavits and publications, it is beyond dispute that the products before us fit the words of this definition which the Supreme Court has already upheld (in an earlier version). Universal Battery Co. v. United States, 281 U.S. 580 , 50 S.Ct. 422 , 74 L.Ed. 1051 (1980).
Plaintiff would escape by invoking the history of the “parts and accessories” tax as affected by the short-lived “commercial refrigeration” duty. The court accepts this contenton, but I cannot. With the majority and the plaintiff, I assume that the 1941-1942 refrigeration tax reached the type of equipment now in question and that, upon the repeal of that tax in 1942, plaintiff was no longer subject to a refrigeration levy. Nevertheless, there inheres in plaintiff’s argument a basic fallacy. This is the triple assumption that (i) before 1941 the parts-and-accessories tax did not cover the forerunners of plaintiff’s current refrigerating units, but that if it did (ii) the one-year commercial refrigeration tax (higher than the parts-and-accessories rate) carved out, for all time, these machines from the automotive tax; and (iii) upon the repeal of the refrigeration tax in 1942, the machines could not, once again, be deemed the “parts and accessories” they were prior to the 1941-1942 refrigeration tax. As I see the matter, plaintiff’s present devices (if they existed at that time) would have been taxable, prior to the 1941 refrigeration duty, under the parts-and-accessories portion of the automotive tax; during 1941 and 1942 they were taxable under the higher rate of the refrigeration tax; but after the repeal of that impost in 1942, they again became taxable at the lower rate of the parts-and-accessories tax.
*252 The prototypes of the plaintiff’s machines were first sold in 1939. 1 The Internal Revenue Code of 1939, § 3403(a), imposed a 2% tax on “parts or accessories” for “[a]utomobile truck chassis, automobile truck bodies, * * * tractors of the kind chiefly used for highway transportation in combination with a trailer or semitrailer * * 2 The then-pertinent regulations, as well as those under the preceding legislation (see footnote 2), contained substantially the same definition of “parts and accessories” as was applicable to the sales of taxpayer’s machines in 1961 and 1962. Treas.Reg. 46 (1940 ed.), § 316.55; Treas.Reg. 46 (Rev.Act of 1932), art. 41. 3 I cannot avoid the conclusion that, down to 1941, the plaintiff’s prototypes were clearly taxable under those broad provisions. Plaintiff makes no persuasive argument to the contrary. It notes that the machines were not in fact taxed at that time. But in construing such tax legislation it is of small moment that the Internal Revenue Service did not actually get around to assessing this tax on plaintiff’s transactions from 1939 to 1941 — particularly since the higher 1941 commercial refrigeration tax came into being so soon after plaintiff’s devices first appeared on the market. 4 Plaintiff and the court also rely, mistakenly in my judgment, on a Service ruling (S.T. 523, XI-2 Cum.Bull. 477 (1932)) that the household refrigeration tax did not apply to “refrigerator parts or units designed primarily and solely for commercial purposes,” including “refrigerating units for commercial transportation equipment.” This ruling answered an inquiry as to the incidence of the household-refrigerator tax — nothing else — and the statement that commercial refrigerators “are exempt from tax” meant only that such machines were exempt from the particular tax (i. e., the household refrigerator duty) about which questions had been raised. There is no intimation that the Service was announcing, though not asked to do so, that no excise tax of any nature applied, or could apply, to the enumerated articles. 5 In short, it is plain to me that the prototype devices for refrigerating trucks and trailers which plaintiff manufactured from 1939 to 1941 were subject to the 2% parts-and-accessories segment of the automotive tax — the terms of which squarely blanketed that equipment.
Then came the commercial refrigeration tax of October 1941, with its 10% rate, 6 which (I assume) governed the *253 taxpayer’s articles (to the exclusion of the lower parts-and-accessories tax) during the one year it lasted. But it was repealed as of November 1, 1942. I see no reason why, at that time, the machines did not again become automatically subject to the lower (5%) parts-and-accessories tax. Taxpayer agrees that this question turns entirely on the intent of Congress in adopting and then discarding the refrigeration tax. This 1941 levy, it is said, must have impliedly repealed the coverage by the parts-and-accessories tax of truck-trailer refrigeration machines since it would not do to have both taxes apply to the same products ; and when the refrigeration tax was itself removed from the books a year later, without the reinsertion of these machines into the automotive tax, they must have been left wholly untaxed from that point until today.
A more realistic and accurate appraisal, I suggest, recognizes the overlap in coverage of the parts-and-accessories tax and the refrigeration duty; the language and reach of both could well include equipment of the type now in contest. Congress did not, of course, advert to this overlap and was probably unaware of it. All can concur, however, that Congress did not wish both taxes to be imposed simultaneously on the same machine. So long as the two co-existed, one would be dominant. But there is no need to insist — contrary to the usual canon (Drew v. United States, 340 F.2d 365, 367 , 169 Ct.Cl. 69 (Jan. 1965) — on an implied repeal of the other. The refrigeration tax was the higher (10%, rather than 5%) and doubtless Congress would desire it to be the one collected. To the extent of the overlap, the automotive tax, at 5%, would therefore remain in abeyance — suspended, quiescent. When the overlay disappeared with the abandonment of the refrigeration tax in 1942, the lesser tax would revive and become effective once more. This evaluation of the interaction of the two taxes— giving each its place — more nearly accords with the probable legislative design than to imply an unnecessary repeal and sudden death of the lower-rated tax in 1941, with the inevitable conclusion that, through absent-mindedness, Congress left plaintiff’s devices entirely untaxed when it repealed the refrigeration assessment in 1942. 7 Since all other “parts and accessories” of trucks and trailers have remained taxed, there is no reason to think that air-conditioning machines of this type were to be specially favored. 8
A simple example may illustrate my point. Suppose that Congress had for some time taxed the sale of “footwear” at 5% and then in 1941 had levied a 10% tax on the sale of all sports apparel, including sneakers; a year later, however, this 10% tax was repealed, leaving the “footwear” tax at 5% still outstanding. The correct reading of this tax history, it seems to me, is that prior to 1941 sneakers would be taxed at 5%, from 1941 to 1942 at the higher 10% rate, and after 1942 at 5% again. The wrong reading would be to say that, after the repeal of the higher tax in 1942, the sale of sneakers became free from tax, although all other footwear remained liable. In my opinion, the present case is precisely the same.
On this view, neither United States v. Leslie Salt Co., 350 U.S. 383 , 76 S.Ct. 416 , 100 L.Ed. 441 (1956), nor J. P. Seeburg Piano Co. v. United States, 62 Ct.Cl. 281 (1926), suggests or supports a different holding. In the former, the Supreme Court emphasized that from the beginning of the stamp tax Congress had separated “promissory notes” from “bonds, debentures, or certificates of indebtedness,” taxing the first at a lower rate (if *254 it imposed any tax at all). 350 U.S. at 388 , 76 S.Ct. at 419 . Here, as I see it, Congress included truck refrigerator units, from their inception, under the partS-and-aceessories tax and authorized a separate and higher levy only for a limited span of one year. Seeburg rested heavily on the legislative history of the particular statutes ( 62 Ct.Cl. at 284 ). The general phraseology of the concluding paragraph of the opinion — quoted by the majority, ante — must be taken together with the individual circumstances of which the court had just taken full account. In this case we have nothing comparable to the legislative background in Seeburg or in Leslie Salt.
For these reasons I would grant the defendant’s motion for summary judgment and dismiss the petition.
. The affidavit of the Chairman of the Board of plaintiff states that plaintiff’s predecessor began “the manufacture of commercial refrigeration units for use in over-the-road trailers” in 1938.
. Section 606 of the Revenue Act of 1932, 47 Stat. 261 -262, had placed the tax on “parts or accessories” for “automobile truck chassis and automobile truck bodies.” This was extended by various statutes through the 1939 Code. The Revenue Act of 1938, § 709, 52 Stat. 571 , specifically included the tractor-trailer combination.
. This definition goes back, in substance, to 1919.
. The court’s opinion says that similar units must have been on sale (by others) at least from 1932, but there is very little in the record to support that view of the facts, and much opposed. Plaintiff’s leading affidavit declares that, prior to the undertaking by the predecessor firm in 1938, over-the-road refrigeration was accomplished by the use of ice and salt, pre-cooled plates, or mechanical refrigerating units which were impractical for large trailers. Plaintiff’s brochures stress the novelty of the Thermo King developments in the late 1930’s and the prior dearth of comparable equipment. (It is worth noting, in view of the court’s assumption, that the taxpayer has the burden of proof in this refund suit.)
. Also, it seems probable that in 1932 the reference to “refrigerating units for commercial transportation equipment” meant to designate (a) railroad and ship carriage which were practically the only commercial transportation at that time using refrigerating units comparable to plaintiff’s present-day machines (see footnote 4, supra), and (b) ice cabinets and similar old-time coolers for trucks.
. At the same time the parts-and-aecessories tax was lifted to 5%.
. As the court points out, ante, there is nothing helpful in the legislative history of the 1942 repealer.
. Claims of this kind for exemption from taxation must be clearly made out. New Jersey Automobile Club v. United States, 149 Ct.Cl. 344, 346-347 , 181 F.Supp. 259, 261 (1960), cert. denied, 366 U.S. 964 , 81 S.Ct. 1913 , 6 L.Ed.2d 1255 (1961); Hardware Underwriters & National Hardware Service Corp. v. United States, 65 Ct.Cl. 267, 283 (1928), cert. denied, 278 U.S. 645 , 49 S.Ct. 81 , 73 L.Ed. 559 .