UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
April 20, 1943
KELLY, FORMER COLLECTOR OF INTERNAL REVENUE.
Upon rehearing counsel for the Collector has urged that the Court was in error in allowing a partical refund upon a ground not included within the taxpayer's claim for refund nor now includible by amendment, citing Real Estate Land Title & Trust Co. v. United States, 1940, 309 U.S. 13, 60 S. Ct. 371, 84 L. Ed. 542. We think the governing decision is Tucker v. Alexander, 1927, 275 U.S. 228, 48 S. Ct. 45, 72 L. Ed. 253, cited in the Real Estate Co. decision as an instance of waiver by the government following which a taxpayer's claim may be rested upon another ground from that originally asserted. In this litigation the question whether Mennen's Antiseptic Oil was taxable as a toilet soap was directly brought into the case by counsel for the Collector in his statement to the Court at the trial. Said he: "I did not mean at the pre-trial hearing to confine our position solely to the fact that this is a cosmetic. We claim that it is but it may also come within the terms of perfumes or toilet soaps, within the meaning of the statute."
This issue, thus introduced by government counsel, proved to be the one on which the case has turned and is permissibly before us on the authority of Tucker v. Alexander, supra. That a preparation taxable because "similar to" another should bear the same rate as the one to which it is similar, we have no doubt.
The former decision is affirmed.
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