Herring Magic, a Corporation v. United States

This is an appeal from a judgment denying appellant a refund of taxes paid pursuant to 26 U.S.C.A. § 4161 , an excise tax imposed upon the sale by manufacturers and producers of certain named objects including “artificial lures.”

Appellant is the manufacturer of a certain device called Herring Magic. This device is made of colorless, translucent plastic with hooks attached. In use, the head of a minnow or herring is placed in a cavity in the device and fastened by means of a pin inserted through the bait fish’s head. The hooks of the Herring Magic are secured to the dead body of the bait fish by means of a body clamp in order to keep the hooks close to the underpart of the body of the bait fish at all times. When being trolled through the water, the Herring Magic, with its attached herring or minnow, provides whatever luring characteristics a dead bait fish might have plus produc ing a swimming action claimed to be identical to that of a live herring, a result caused by the hydrofoil of the Herring Magic. The device itself has no scent, does not resemble any natural food of game fish, and in trolling use is practically invisible. When used without a minnow or similar balancing…