articles as such, because they were medicated, and that the statute was completely repealed in 1921. Furthermore, the regulations herein were adopted in 1932, and it is contended that they have been impliedly approved by Congress.
It also argues that the statute should be given a broad interpretation since it provides that "any similar substance, article, or preparation, by whatsoever name known or distinguished" is likewise taxable, Duradene Co. v. Magruder, D.C., 21 F.Supp. 426, affirmed 4 Cir., 95 F.2d 999, and that the plaintiff's product comes within the statute's two requirements: (1) the article in question must be one named or a substance similar thereto, and (2) it must be either used or intended to be used for toilet purposes, Mione Mfg. Co. v. United States, 3 Cir., 114 F.2d 647.
Finally, it is contended that the oil is advertised as a toilet article and should be taxed as such since it has been judicially determined that advertisements to the public are binding between the taxpayer and collector. Mione Mfg. Co. v. United States, supra; Peroxide Chem. Co. v. Sheehan, 8 Cir., 108 F.2d 306; Red Star Yeast & Products Co. v. La Budde, 7 Cir., 83 F.2d 394.Aside from these representations to the public the government contends that the oil is actually and primarily a cleanser, its medicinal use if any being incidental, Peroxide Chem. Co. v. Sheehan, supra, and in no way affecting its primary nature, Mione Mfg. Co. v. United States supra, and that the addition of perfumery alone is sufficient ground for classifying it as a toilet article. Kreinheder Enterprises, Inc., v. Gentsch, D.C.N.D.Ohio Jan. 6, 1938, Murphy v. Graves, D.C. Nov. 22, 1939
We prefer that our determination should not be controlled as a matter of law by plaintiff's advertisements and the addition of perfumery to its compound. The advertisements should not estop the plaintiff from asserting that its product is a medicine, because those assertions, though extolling cosmetic values, likewise recommend its value as a medicine, and in fact the emphasis is upon the latter. With reference to the addition of perfumery we do not agree that that alone should control the classification of the oil.
There remains only a factual question, and in this conclusion the advertisements and the addition of perfumery will be considered together with all other facts.
The source of controversy revolves around the definition of "cosmetic". From the standpoint of a layman, we agree that a cosmetic is considered as an article of decorative value, such as rouge, lip stick, mascara, powder, etc. These create fictitious appearances. Obviously, an oil would create per se nothing of that sort. In fact, an opposite result would be effected.Any beauty values it might have are produced indirectly by virtue of some physiological response to the application.Plaintiff's analysis seems to be in this fashion, and for that reason it concludes that its product is not a cosmetic.
The defendant cites the case of Duradene Co. v. Magruder, supra [21 F.Supp. 429], which defined "cosmetic" as "any external application intended to beautify or improve the complexion, skin or hair", as well as the various following definitions of the term cited by plaintiff: "A powder, paste, or other compound applied to the skin in order to improve its appearance." Funk & Wagnalls Standard Dictionary.
"Adjective: Pertaining to beauty, beautifying, improving beauty, particularly the beauty of the complexion.
"Noun: Any preparation that renders the skin soft, pure and white, or helps or professes to be able to help to beautify or improve the complexion." Century Dictionary & Encyclopedia.
"Adjective: Having power to beautify (especially the complexion.) * * *
"Noun: A preparation for beautifying the hair, skin or complexion. * * *" Oxford English Dictionary.
"Noun: Any external application intended to beautify and improve the complexion, skin or hair". Webster's International Dictionary, 1929.
Section 603 is broader than any of these definitions, because it includes designated cosmetics as well as detergents which a layman would admit to be a toilet article but hardly a cosmetic, and any similar substance as well.
Since the subject matter is not specifically designated by the statute, the real question is whether it is a similar preparation used or intended to be used for toilet purposes in which case we think the definition is less significant. Our answer to this is that it is similar to a soap, because it is a perfumed cleanser. It is likewise similar to a cream which is included within the regulations, because it serves as a skin lubricant. It is recommended and used, and, therefore, intended for those purposes.
We do not think that the presence of about 1/4 of 1% medication materially affects the result herein. The evidence, conflicting as it is, does not convince us that it is primarily a medicament. The experiments of plaintiff's bacteriologist and his conclusion that the product in question is antiseptic and germicidal is not preclusive. We do not know but that the same results would have been accomplished if the product minus the active ingredients had been used in the experiment. We conclude that the active ingredients are only incidental to the primary purpose of the product.
With regard to Kora-Konia the product has been submitted to us as self-demonstrative in the form of Exhibit F --". It is a powder with alleged healing properties. The taxability of medicated powers as a toilet preparation has been upheld by the Commissioner of Internal Revenue. S.T. 693.1933-2 Cu.Bull. 312. Since we have no evidence before us, we must follow the ruling of the department in this respect.
The claim for refund is denied.
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