Carter

(dissenting). I think that the judgment of the court below should be affirmed. Confessedly the contracts by which the plaintiff parted with the possession of its jewelry were not sales, within the accepted meaning of that term. But it seems reasonable to hold, as did the court below, that for the purpose of taxation they should be deemed to be sales from the time when the plaintiff abandoned further efforts to collect installments, as it did on December 31,1923, and wrote them off as uncollectible. The Revenue Acts applicable to the ease are those of 1918 and 1921. Under the authority of those acts the Treasury Department issued its Regulation 48, governing the enforcement of the acts as they related to the tax on the sale of jewelry. In the regulations promulgated under both acts it was provided: “The tax'attaches when the article is sold; that is to say, when the title to it passes from the vendor to the purchaser. When title passes is a question of fact, dependent upon the intention of the parties as gathered from the contract of sale and the attendant circumstances. * * * In the case of a conditional sale, where the title is reserved until payment of the purchase price in…

The Slavick Jewelry Company is engaged in selling jewelry at retail under a plan by which it delivers possession of the merchandise sold, but retains title until the full purchase price is paid. During the period from December, 1920, to December, 1924, it made approximately 700 of such sales, for the gross aggregate price of $72,746.80, and actually received on account thereof the aggregate sum of $49,115.55. In no ease was the purchase price paid in full; in some instances the larger part remaining unpaid, and in some the balance being trifling, as, for example, $1 on a $60 or $75 sale, and $1.75 on an $85 transaction. At divers dates during the period mentioned the several balances, aggregating $23,631.25, were charged off to profit and loss, and the accounts closed, for what reason is not disclosed.

Section 905 of the Revenue Acts of 1918 and 1921 ( 40 Stat. 1124 , and 42 Stat. 293 [Comp. St. § 6309%f]), provides for a tax upon jewelry “when sold by or for a dealer * * * equivalent to five per centum of the price for which so sold,” and acting thereunder the Commissioner of Internal Revenue assessed a tax of $3,637.34, which is at the rate of 5 per cent, computed upon the…