PRETTYMAN, Circuit Judge.
These are three petitions to review decisions of the Board of Tax Appeals for the District of Columbia. They concern sales taxes and use taxes under a local statute.
The petitioner operates a hotel in the District of Columbia. It furnishes transient guests with rooms and meals. It also supplies glassware, chinaware, silverware, table linen, room service tables, upholstery leather, stationery, pen points, toothpicks, soap, toilet tissue, bed linen, towels, glass tumblers, clothes hangers, dresser trays, ashtrays, lamps and lamp shades, light bulbs, window draperies, and carpeting.
The statute imposes an excise tax upon the privilege of selling at retail certain tangible personal property and certain selected services.
The statute defines "sale" and "selling" to include not only transactions whereby title is transferred but also transactions by which possession of tangible personal property is transferred for a compensation, and transactions whereby certain services are rendered for a consideration.
The statute exempts from the tax sales "in which the purpose of the purchaser is to resell the property so transferred in the form in which the same is, or is to be, received by him, or to use or incorporate the property so transferred as a material or part of other tangible personal property to be produced for sale by manufacturing, assembling, processing, or refining."
The sales tax applies to sales within the District of Columbia. The statute also imposes a "Compensating-Use Tax"
Petitioner purchases the goods listed above either within or without the District but uses them in connection with its sales of meals and rooms within the District. It pays a sales tax on these latter sales. The question is whether the use of the listed property in these taxable transactions is such as to make the transactions whereby the hotel acquired these goods exempt from tax. Perhaps an illustration will clarify the question. Suppose the hotel buys sheets, towels, soap, etc., in Baltimore. It puts these goods in rooms and charges transient guests for the rooms thus furnished. Must it pay a use tax upon the prices it paid for these goods?
Petitioner says that its purpose in purchasing these listed goods is to resell them — that is, to transfer possession of them — in the same form in which they are received, or that these goods are incorporated as a part of other property, to wit, a room or a meal, produced for sale by assembling. Concretely, its contention is that it sells an assembled package consisting of room, linen, towels, soap, etc., or of food, china, glass, toothpicks, etc. It says that the listed goods were acquired by it for this assembly and resale. Hence it says, under the exemption quoted above from Section 114(a) of the statute, its purchases are not subject to either sales or use taxes.
Petitioner's position should be clearly understood. The hotel does not say — indeed it denies that it contends — that the several items of listed property are, separately, accommodations regularly furnished to transients within the meaning of the tax statute. It denies, for example, that to furnish a towel to a transient for a price is within the taxing terms of the statute. It does not say that when it rents a room with towels it is selling a room and also selling another accommodation (the towels) for which it also makes a charge. It says that the terms of paragraph 6 of Section 114(a)
The District of Columbia says that these goods are merely used by the hotel in the conduct of its business, in the same manner as it uses tables and beds; or in the same manner as a shoe salesman uses chairs, footstools and mirrors in the business of selling shoes. It says that the sale, under the statutory provision, is of the room or the meal, and that the listed goods are not "sold" as part of that transaction. The position of the District is supported in part by the reasoning of the Supreme Court of Illinois in Theo. B. Robertson Products Co. v. Nudelman.
Upon the issues thus presented to us, we agree with the District of Columbia and thus with the conclusions and decisions of the Board of Tax Appeals. Clearly the china, glass, silver, table linen, etc., are not parts of the meal sold the guest but are accessory utensils used by the hotel in making the sales of its meals. Less clearly, perhaps, but nevertheless correctly we think, bed linen, towels, tumblers, light bulbs, draperies and carpets do not become parts of the room but are properties used by the hotel in furthering the sales of its rooms. No separate contentions are made as to soap, toothpicks, stationery and similar articles actually consumed by guests. We assume that they are de minimis.
The view we have expressed makes it unnecessary that we consider the other points presented.
The decisions of the Board of Tax Appeals are affirmed.