WILBUR D. OWENS, Jr., United States District Judge
After hearing the trial of this case and carefully considering the memoranda submitted by both parties, the Court enters the following findings of fact and conclusions of law.
Plaintiff filed this action after the United States of America, through the Secretary of the Treasury and the Internal Revenue Service, assessed excise taxes on Horton Homes' purchase of certain vehicles known as "toters." Toters are vehicles used to transport manufactured homes from the plant where they are built to the retail dealer of the manufactured homes. The vehicles in question were originally purchased from LJL Truck Center in Macon, Georgia. When purchased from LJL, the vehicles were incomplete chassis cabs specially ordered with a 128-inch wheel base. At that time, the vehicles were not capable of towing manufactured homes or any other cargo. LJL and Plaintiff Horton Homes arranged to have the vehicles transported to Kingsley-Fisher industries where certain modifications were made. Kingsley-Fisher initially transported the vehicles to another manufacturer, Double Eagle, where sleeper cabs were installed. After the sleeper cabs were installed, the vehicles were transported back to Kingsley-Fisher where the vehicles were converted into what is known as a "toter." Kingsley-Fisher installed a heavy duty vertical power hitch, coil spring boxes, a 200-gallon fuel tank, a "Wide Load" sign, a mirror and light bar, a spare tire rack, fenders, a lighting receptacle and a manual control box mounted on the dash or the window frame of the cab that could activate the lights and electromagnetic brakes on the manufactured home. When the vehicles left Kingsley-Fisher, they had become "toters" capable of towing or pulling a manufactured home. Kingsley-Fisher then delivered each toter to Horton Homes.
The Internal Revenue Service (hereinafter referred to as the "IRS") assessed excise taxes on toters purchased by Horton Homes during the periods of 1989-1995. The IRS contends the tax is due based upon §§ 4051 and 4052 of the Internal Revenue Code. The IRS contends those sections impose a 12% percent excise tax on "tractors" and that the toters in this case fall within the statutory and regulatory definitions of "tractor." The IRS contends the toters are tractors because (1) they are primarily designed to tow or pull the manufactured homes, (2) the toters contain brakes that are attached to the manufactured home and are activated from inside the toter's cab, (3) the manufactured home is similar to the statutory example of a "trailer" or "semitrailer" because the wheels are attached to the chassis of the manufactured home so that it may be pulled by the toter and (4) a majority of the weight of the manufactured home is not carried on the same chassis as the toter but is carried on its own chassis.
Plaintiff Horton Homes seeks a refund of the excise taxes that have been paid and a judgment finding that the toters are not tractors or subject to future excise taxes. Plaintiff contends the toters do not fall within the statutory and regulatory definitions of tractor but are "trucks." Plaintiff contends the manufactured homes are not similar to the trailers and semi-trailers discussed in the statutes and regulations. Plaintiff contends the brakes attached to the manufactured homes have no real function because the manufactured home is stopped mainly by the toter's brakes and the manufactured home's brakes are for backup, emergency purposes only.
Title 26, section 4051 of the United States Code provides:
(a) There is hereby imposed on the first retail sale of the following articles (including in each case parts or accessories sold on or in connection therewith or with the sale thereof) a tax of 12 percent of the amount for which the article is so sold:
(A) Automobile truck chassis;
(B) Automobile truck bodies;
(C) Truck trailer and semitrailer chassis;
(D) Truck trailer and semitrailer bodies; or
(E) Tractors of the kind chiefly used for highway transportation in combination with a trailer or semitrailer.
(b) Under regulations prescribed by the Secretary . . . If (A) the owner . . . or operator of any vehicle which contains an article taxable under subsection (a) installs (or causes to be installed) any part or accessory on such vehicle, and (B) such installation is not later than the date 6 months after the date such vehicle (as it contains such article) was first placed in service,
then there is hereby imposed on such installation a tax equal to 12 percent of the price of such part or accessory and its installation.
(2) Exceptions. Paragraph (1) shall not apply if (A) the part or accessory installed is a replacement part or accessory, or (B) the aggregate price of the parts and accessories (and their installation) described in paragraph (1) with respect to any vehicle does not exceed $1,000 (or such other amount or amounts as the Secretary may by regulations prescribe).
(3) Installers secondarily liable for tax. The owners of the trade or business installing the parts or accessories shall be secondarily liable for the tax imposed by paragraph (1).
"The term `first retail sale' means the first sale, for a purpose other than for resale or leasing in a long-term lease, after production, manufacture, or importation." 26 U.S.C. § 4052 (a)(1). "If any person uses an article taxable under section 4051 before the first retail sale of such article, then such person shall be liable for tax under section 4051 in the same manner as if such article were sold at retail by him." Id. at (a)(3)(A).
Often it is necessary to refer to applicable regulations when determining whether a particular set of facts is covered by a statute. A court's role in determining the validity of regulations is limited, since "Congress has delegated to the Secretary of the Treasury, not to [the courts] the task of administering the tax laws of the Nation." Commissioner v. Portland Cement Co. of Utah, 450 U.S. 156, 169 (1981). The "role of the judiciary in cases of this sort begins and ends with assuring that the [Treasury] regulations fall within [the Secretary's] authority to implement the congressional mandate in some reasonable manner." United States v. Correll, 389 U.S. 299, 307 (1967).
For Horton Homes' toters to be subject to the excise tax they must be "tractors" and not "trucks." Under the applicable regulations, a "tractor" is defined as a "highway vehicle primarily designed to tow a vehicle, such as a trailer or semitrailer, but does not carry cargo on the same chassis as the engine. A vehicle equipped with air brakes and/or towing package will be presumed to be primarily designed as a tractor." Treas. Reg. § 145.4051-1(e)(1) (emphasis added). "An incomplete chassis cab shall be treated as a tractor if it is equipped with one or more of the following . . . a device for supplying pressure from the chassis cab to the brake system (air or hydraulic) of the towed vehicle; a mechanism for protecting the chassis cab brake system from the effects of a loss of pressure in the brake system of the towed vehicle; a control linking the brake system of the chassis to the brake system of the towed vehicle; a control in the cab for operating the towed vehicle's brakes independently of the chassis cab's brakes; or any other equipment designed to make it suitable for use as a tractor." Id. "The term `truck' refers to a highway vehicle that is primarily designed to transport its load on the same chassis as the engine even if it is also equipped to tow a vehicle, such as a trailer or semitrailer." Id. at (e)(2).
Horton Homes' toters fall squarely within the meaning of "tractor" as described in the statutes and regulations. The toters are highway vehicles primarily designed to tow manufactured homes that are attached to the toter's A-frame ball hitch with a hydraulic lift hitch. The toters are equipped with air brakes and a towing package. The toters have a control in the cab for operating the manufactured home's brakes independently of the cab's brakes. The toters are not trucks because, as Plaintiffs expert Dr. Bansal testified, at least 75% of the weight load of the manufactured home is carried on the manufactured home's chassis and not the chassis of the toter. The toters are vehicles designed to tow rather than carry manufactured homes. Horton Homes is therefore liable for the excise taxes assessed.
Horton Homes is liable for the excise tax, as opposed to LJL or any other manufacturer, because the "first retail sale" occurred upon completion of the conversion of the incomplete chassis cabs into toters. Until the incomplete chassis cabs were converted into toters, they had no functional use. The chassis cabs were specially ordered from LJL with a shortened, 128-inch wheel base so they could be converted into toters to tow the manufactured homes. Finding that Horton Homes' toters are not subject to the excise tax would be to elevate form over substance, a practice that is strongly discouraged in the tax arena. See Redwing Carriers, Inc. v. Tomlinson, 399 F.2d 652 (5th Cir. 1968). Plaintiff is therefore liable for the excise tax as assessed by the IRS for the periods between 1989 and 1995. Further, Plaintiff is not entitled to a refund of the amounts already paid. Let judgment be entered in favor of Defendant United States of America.
SO ORDERED.