1. Par. 3 of § 800(a) of Revenue Act of 1918, laying taxes on
theater and opera tickets sold at newstands, hotels, etc., for more
than the "established price" at the ticket office of the theater or
opera house,
held inapplicable to sale by a stockholder of
box tickets, issued as an incident of his investment in an opera
house company, which were not sold at the box-office and for which
there was no established price. P.
270 U. S.
247.
2. A statute imposing taxes with particularity, and in plain,
unambiguous language, cannot be enlarged by construction to cover
other cases omitted through presumable inadvertence of the
legislature. P.
270 U. S.
250.
3. An administrative practice which enlarges the scope of an
unambiguous statute, and which is neither uniform, general, nor
long continued, cannot be given legal force or effect, nor be
accepted as a reason why subsequent reenactment of the statute
without change should be taken as a legislative interpretation of
its original meaning as justifying such practice. P.
270 U. S. 251.
59 Ct.Cls. 654 reversed.
Appeal from a judgment of the Court of Claims rejecting a claim
for money paid by Georgine Iselin, under protest, as a tax on
receipts from sale of admissions to an opera box.
Page 270 U. S. 246
MR. JUSTICE BRANDEIS delivered the opinion of the Court.
The Metropolitan Opera House in New York City is owned by a
corporation which leased it to the producing company. The use of
all the parterre boxes was reserved by the lessor, with the
privilege of six free admissions to each box at every performance.
Before the passage of the Revenue Law of 1918, the lessor conferred
upon Georgine Iselin, as owner of 300 of its shares, a license so
to use a designated parterre box. During the season of 1919-20,
being authorized so to do, she sold through a personal agent the
license to use her box for 47 of the 70 performances given during
the season, and received therefor $9,525 net after deduction of the
agent's commissions. On the amount received, Miss Iselin was
assessed a tax of $3,352.50, under paragraph 3 of § 800(a) of the
Revenue Act of 1918, Act of February 24, 1919, c. 18, 40 Stat.
1057, 1120-1121. She paid the amount under protest and presented a
claim that it be refunded. The Commissioner of Internal Revenue
rejected the application, holding that the tax was payable under
paragraph 4 of that Act. [
Footnote
1] Then Miss Iselin brought this suit in the Court of Claims to
recover the amount. A judgment
Page 270 U. S. 247
dismissing the petition, rendered upon findings of fact, was
entered May 5, 1924. 59 Ct.Cls. 654. The case is here on appeal
under § 242 of the Judicial Code.
Paragraph 3 of § 800(a), under which the tax was assessed,
provides:
"Upon tickets or cards of admission to theaters, operas, and
other places of amusement, sold at news stands, hotels, and places
other than the ticket offices of such theaters, operas, or other
places of amusement at not to exceed 50 cents in excess of the sum
of the established price therefor at such ticket offices plus the
amount of any tax imposed under paragraph (1), a tax equivalent to
5 percentum of the amount of such excess, and if sold for more than
50 cents in excess of the sum of such established price plus the
amount of any tax imposed under paragraph (1), a tax equivalent to
50 percentum of the whole amount of such excess, such taxes to be
returned and paid, in the manner provided in § 903, by the person
selling such ticket."
Neither stockholders' boxes nor tickets to them were on sale at
any ticket office, as all the parterre boxes were reserved by the
lease for the stockholders. For this reason, there was no regular
or established price for parterre boxes. Nor was any other box
exactly like them on sale. Each sale of a stockholders' box or
tickets was made as the individual transaction of a particular
stockholder, for a particular performance, and to a designated
purchaser. The price paid varied widely for different performances.
There was, above the parterre boxes, a tier of boxes known as the
grand tier. These boxes, which were on sale at the ticket office,
also had seats for six persons, were uniform in size with the
stockholders' boxes, and were otherwise similar. The ticket office
price for grand tier boxes was $60 for each performance. The
Commissioner of Internal Revenue, though sustaining the tax under
paragraph 4, assessed the tax under paragraph 3, apparently
Page 270 U. S. 248
on the theory that Congress intended to tax sales of boxes like
the plaintiff's; that, since there was no "regular established
price or charge" for boxes exactly like hers, and no such boxes
were sold at the ticket office, the basis for taxation should be
sought in the established price for the class of boxes actually on
sale most like hers; that it should therefore be assumed that the
box office price for the similar grand tier boxes was the
"established price at the ticket offices" of parterre boxes, and
that, with such price as a standard, the calculation involved in
determining the item of "any tax imposed by paragraph (1)," and in
assessing the supertax under paragraph (3) should be made.
[
Footnote 2]
Miss Iselin contended that § 800(a) had no application to
stockholders' boxes or tickets; that the section provided for a tax
only on the tickets customarily sold at box offices, for which
there is an established price there, and which are commonly sold at
news stands, hotels, and other places of business for higher
prices; that it was the purpose of Congress to impose a small tax
upon tickets sold at the ticket office, a moderate tax on those
sold at a moderate advance over the ticket office price, and a
large tax upon any resale of admission tickets, if made at a price
above a reasonable advance on the regular price, and also a large
tax upon an original sale, if made at a price in excess of the
regular or established price; that tickets issued under the
peculiar circumstances stated, which were received by her as an
incident of her investment in the lessor company and in return for
obligations assumed by her as a stockholder to ensure performance
of operas, were not within the purview of the section; that she
was
Page 270 U. S. 249
not taxable at all, since her tickets had not been sold at a box
office and there was no established price for them; but that, if
taxable, it could be only under paragraph 5, under which she had
without protest paid a tax on these tickets amounting to $242.
[
Footnote 3]
The Court of Claims held that the tax was properly assessed
under paragraph 3. It concluded that there was an "established
price" for box tickets of this character, and that Miss Iselin
herself had established the price, because, prior to the assessment
to her of the tax here in question, she had paid without protest a
tax assessed under paragraph 5, the amount of which the government
had determined by fixing $60 as the established price on which the
tax so paid was calculated. The court held that the term
"established price" did not imply a fixing of the price by the
producing company or others having the general power of
establishing the prices of tickets; that it was of no legal
significance that plaintiff had in fact made no sale at the price
fixed in the assessment, that she had actually sold the tickets for
the different performances at widely varying prices, and that no
sale had been made of such tickets at the ticket office.
The government concedes that neither paragraph 1, paragraph 3,
paragraph 4, paragraph 5, or any other paragraph [
Footnote 4] of § 800(a) provides in terms for
taxing a
Page 270 U. S. 250
privilege like that enjoyed by the plaintiff. It makes no
contention here that the tax can be sustained under any paragraph
of § 800(a) unless it be paragraph 3. It argues that Congress
clearly intended to tax all sales of tickets; that there is in the
section no indication of intention to exempt from the tax any sale
of tickets or any resale at a profit; that the receipts here taxed
are in character substantially similar to those specifically
described in paragraph 3; that this general purpose of Congress
should be given effect, so as to reach any case within the aim of
the legislation, and that the Act should therefore be extended by
construction to cover this case. It may be assumed that Congress
did not purpose to exempt from taxation this class of tickets. But
the Act contains no provision referring to tickets of the character
here involved, and there is no general provision in the Act under
which classes of tickets not enumerated are subjected to a tax.
Congress undertook to accomplish its purpose by dealing
specifically, and, in some respects, differently, with different
classes of tickets and with tickets of any one class under
different situations. The particularization and detail with which
the scope of each provision, the amount of the tax thereby imposed,
and the incidence of the tax were specified preclude an extension
of any provision by implication to any other subject. The statute
was evidently drawn with care. Its language is plain and
unambiguous.
Page 270 U. S. 251
What the government asks is not a construction of a statute,
but, in effect, an enlargement of it by the Court, so that what was
omitted, presumably by inadvertence, may be included within its
scope. To supply omissions transcends the judicial function.
Compare United States v. Weitzel, 246 U.
S. 533,
246 U. S. 543;
Peoria & Pekin Union Ry. Co. v. United States,
263 U. S. 528,
263 U. S. 534,
535.
The government calls attention to the fact that, as early as
October 24, 1919, the Commissioner of Internal Revenue made the
ruling pursuant to which the tax here in question was assessed;
that, on March 22, 1920, the Attorney General sustained that
ruling; that the provisions here in question were reenacted without
substantial change in the Revenue Act of 1921, Act Nov. 23, 1921, §
800(a), c. 136, 42 Stat. 227, and the Revenue Act of 1924, Act June
2, 1924, § 500(a), c. 234, 43 Stat. 253, and that the
administrative practice adopted in 1919 has been steadfastly
pursued. It suggests that these facts imply legislative recognition
and approval of the executive construction of the statute. But the
construction was neither uniform, general, nor long continued;
neither is the statute ambiguous. Such departmental construction
cannot be given the force and effect of law.
Compare United
States v. G. Falk & Brother, 204 U.
S. 143;
National Lead Co. v. United States,
252 U. S. 140,
252 U. S.
146.
Reversed.
[
Footnote 1]
Paragraph (4) provides:
"A tax equivalent to 50 percentum of the amount for which the
proprietors, managers, or employees of any opera house, theater, or
other place of amusement sell or dispose of tickets or cards of
admission in excess of the regular or established price or charge
therefor, such tax to be returned and paid, in the manner provided
in § 903, by the person selling such tickets."
[
Footnote 2]
Paragraph (1) provides:
"A tax of 1 cent for each 10 cents or fraction thereof of the
amount paid for admission to any place . . . including admission by
season ticket or subscription, to be paid by the person paying for
such admission."
[
Footnote 3]
Paragraph (5) provides:
"In the case of persons having the permanent use of boxes or
seats in an opera house or any place of amusement or a lease for
the use of such box or seat in such opera house or place of
amusement (in lieu of the tax imposed by paragraph (1)), a tax
equivalent to 10 percentum of the amount for which a similar box or
seat is sold for each performance or exhibition at which the box or
seat is used or reserved by or for the lessee or holder, such tax
to be paid by the lessee or holder; and . . ."
[
Footnote 4]
The remaining paragraphs, so far as they impose a tax, are:
"(2) In case of persons (except . . . ) admitted free or at
reduced rates to any place at a time when and under circumstances
under which an admission charge is made to other persons, a tax of
1 cent for each 10 cents or fraction thereof of the price so
charged to such other persons for the same or similar
accommodations, to be paid by the person so admitted;"
"
* * * *"
"(6) A tax of 1 1/2 cents for each 10 cents or fraction thereof
of the amount paid for admission to any public performance for
profit at any roof garden, cabaret, or other similar entertainment,
to which the charge for admission is wholly or in part included in
the price paid for refreshment, service, or merchandise; the amount
paid for such admission to be deemed to be 20 percentum of the
amount paid for refreshment, service, and merchandise; such tax to
be paid by the person paying for such refreshment, service, or
merchandise."