Billings v. United States, ante,
p. 232 U. S. 261
followed and distinguished, to the effect that the owner of a
foreign-built yacht is not liable for the tax imposed by § 37 of
the Tariff Act of 1909 if the yacht was not actually used at all
during the preceding year.
190 F. 359, reversed.
The facts are stated in the opinion.
Page 232 U. S. 291
MR. CHIEF JUSTICE WHITE delivered the opinion of the Court.
These two cases involve the liability of the plaintiff in error
in No. 64 for a tax on the foreign-built yacht Yacona,
which became due on the first of September, 1909. The complaint in
every substantial particular was identical with that filed in the
case this day decided, and this is true also of
the defenses set up in the answer, except that the answer in this
case contained this distinct averment which was not in the
"That the said yacht Yacona
was not in use by the
defendant or by any other person at any time during the year next
preceding the first day of September, 1909, but was out of
commission in the State of New York, throughout the whole of such
The case was submitted on bill and answer, and the liability for
the tax, which was upheld by the court below, was rested upon the
construction as to potential use -- that is, a tax on the privilege
of using -- which we decided in the Billings
case to be
unsound. In this case, as in that, the certificate is concerned
with a writ of error prosecuted by the United States to the circuit
court of appeals because of the rejection of a prayer for interest.
Treating both the cases in this instance as one, as we did in the
previous cases, and applying to this the construction which we have
given the statute in those cases, it follows that the judgment
below was wrong, and must be reversed, with direction to dismiss
And it is so ordered.