monly known as soft drinks, by soda fountains, bottling establishments, and other similar places) sold by the manufacturer, producer or importer thereof."

2. "Upon all unfermented grape juice, soft drinks or artificial mineral waters (not carbonated), and fermented liquors containing less than one-half per centum of alcohol, sold by the manufacturer, producer, or importer thereof, in bottles or other closed containers."

3. "Upon all ginger ale, root beer, sarsaparilla, pop, and other carbonated waters or beverages manufactured and sold by the manufacturer, producer, or importer of the carbonic acid gas used in carbonating the same."

4. "Upon all natural mineral waters, or table waters, sold by the producer, bottler, or importer thereof, in bottles or other closed containers."

Section 315 of the same Act imposes a tax "upon all carbonic acid gas in drums or other containers (intended for use in the manufacture or production of carbonated water or other drinks) sold by the manufacturer, producer, or importer thereof." It will thus be seen that a tax is levied upon the manufacturer, producer, or importer who sells sirups or extracts or carbonic acid gas intended for use in the manufacture or production of soft drinks or carbonated water or other drinks, and a tax upon certain bottled drinks. The tax upon bottled drinks when sold by the manufacturer, producer, or importer thereof, is levied upon "unfermented grape juice, soft drinks or artificial mineral waters (not carbonated), and fermented liquors containing less than one-half per centum of alcohol." The tax upon bottled drinks, when sold by the manufacturer, producer, or importer of the carbonic acid gas, used for carbonating the same, is levied upon "ginger ale, root beer, sarsaparilla, pop, and other carbonated waters or beverages."

While the words "not carbonated," would seem from the punctuation used, to apply only to artificial mineral waters and not to grape juice or other soft drinks, I think the purpose of section 313 was to place a tax upon all the beverages mentioned when sold by the manufacturer, pro

ducer, or importer, either of beverages or of the carbonic gas used in carbonating them. In this view it seems plain that the intention was to tax these beverages when not carbonated upon their being sold by the manufacturer, producer, or importer of the beverages so sold, and when carbonated, to tax them when sold by the manufacturer, producer, or importer of the carbonic acid gas used in carbonating them. This distinction was probably drawn because in the case of uncarbonated beverages the sale would be made naturally by those who manufactured, produced, or imported them, while on the other hand, if carbonated by the manufacturer, producer, or importer of the carbonic acid gas, they would be sold by him. This would be to leave, not included in the tax, the bottler who carbonates beverages but does not manufacture, produce, or import the gas which he uses, but purchases the same in the United States. Apparently Congress was content with taxing him, not upon his bottled goods, but upon the sirups or extracts and carbonic acid gas which he uses. In this way the whole field seems to have been covered.

The Act of February 24, 1919, made some radical changes. It omitted altogether the tax upon sirups or extracts and upon carbonic acid gas and instead levied a tax on drinks commonly known as soft drinks, compounded or mixed at soda fountains, ice cream parlors, or other similar places of business. It also omitted the tax on bottled drinks when sold by the manufacturer, producer, or importer of the carbonic acid gas used in carbonating them. Instead it levied the tax upon bottled drinks when sold by the manufacturer, producer, or importer thereof. A tax of fifteen per centum was laid upon "all beverages derived wholly or in part from cereals or substitutes therefor, and containing less than one-half of one per centum of alcohol." and a tax of ten per centum upon "unfermented grape juice, ginger ale, root beer, sarsaparilla, pop, artificial mineral waters (carbonated or not carbonated), other carbonated waters or beverages, and other soft drinks."

Taking both acts together, I have no doubt that the tax on bottled drinks imposed by both acts applies to all

beverages which are in the class commonly known as soft drinks.

The specific questions which you ask are:

"1. Does the tax imposed by these sections apply to bottled noncarbonated fruit juice, somewhat concentrated, recommended by the manufacturer for beverage use without additional water?

"2. Does the tax imposed by these sections include bottled noncarbonated fruit juice, other than fruit juices recommended by the manufacturer for beverage use in a diluted form?"

You state that these questions arise upon a protest made by the Pheasant Northwest Products Co. against the levying and assessment of the tax on certain products sold by that company which you describe as follows:

"These products are known as 'Phez,' a noncarbonated preparation of unfermented loganberry juice, and ‘Applju,' a noncarbonated unfermented apple juice. Both are sold in closed bottles or containers and are ready for consumption in the form in which same leaves the factory. They may, however, be diluted with water, especially the product 'Phez,' as is the practice among consumers of unfermented grape or other fruit juices. The published advertisements of the company refer to the product 'Phez' as a 'wonderful beverage,' and recommend its consumption either in diluted or undiluted form."

You also quote from certain advertisements published by the manufacturer, copies of which you submitted. There can be no question that the above description is accurate as applied to "Applju" but from an examination of the advertisements referred to I can not agree that they show that the manufacturer recommends the use of "Phez" as a beverage in its undiluted form. On the contrary, each of these advertisements contains the words "to drink, always add two parts water," and these words appear to be also on the label on the bottle. The advertisements also recommend the use of "Phez" for other than beverage purposes, such as for pudding sauce, for gelatin, for flavoring, for sundaes, for special mixed drinks, etc. It is

only for these latter uses that the advertisement seems to recommend it in its undiluted form. On the contrary, in apparent contrast with "Phez," "Logu," another preparation, is advertised as "The Loganberry Beverage ready to drink."

While you have not stated the ingredients of "Phez" other than loganberry juice, it appears in the brief submitted by counsel for the company that it consists simply of unfermented loganberry juice and sugar and I assume that this is true. I think, therefore, that "Phez" must be considered as a preparation of loganberry juice and sugar sold in bottles and recommended to be mixed with water to make a beverage and to be used in its undiluted form for other than beverage purposes.

As to "Applju," the only question is whether fruit juices, either with or without sugar, when sold and used as beverages, are within the class of drinks commonly known as soft drinks. As to "Phez," there is the further question as to whether in the form in which it is sold it is a soft drink or only something to be used in the preparation or production of a soft drink. It would scarcely be denied that the soft drink, as used in these acts, would include any beverage, such as is commonly sold at soda fountains, into which fruit juices enter as an ingredient for the purpose of giving either flavoring or color, and I can entertain no doubt that a beverage whose chief or even sole ingredient is fruit juice is equally included within the term. If, as stated in your letter, therefore, "Applju " is bottled and sold in the form in which it may be used as a beverage, it is a soft drink within the meaning of both of these statutes and subject to the tax imposed. I do not mean to be understood as saying that the fact that the manufacturer recommends or does not recommend his bottled product for use undiluted, as a beverage, is necessarily controlling. I think the real question is whether it is in that form fit for use as a beverage and is so used. If it is commonly used as a beverage, either diluted or undiluted, according to the taste of the drinker, it is, in my judgment, subject to the tax.

The remaining question is whether "Phez" is to be treated as a beverage or only as an ingredient to be used in producing a beverage. I think the advertisements submitted describe and recommend it as the latter. If this description is accurate, that is, if it is a preparation of loganberry juice and sugar, which undiluted is not reasonably fit for beverage purposes and is not so used, although it may be possible to drink it, I am of opinion that it is not a beverage and can not be brought within the term soft drink. It would not, therefore, be subject to the soft-drink tax under either the act of 1917 or the act of 1919.

It does not follow, however, that in this form "Phez" is to escape a tax under section 313 of that act of 1917. That act levies a tax upon prepared sirups or extracts intended for use in the production of soft drink. A preparation of fruit juice and sugar, when used to flavor a beverage, is clearly a sirup within the meaning of this Act. Such a preparation, if itself fit for use as a drink, becomes a beverage. If it is not fit for that use but is, in fact, used in producing a palatable beverage, I see no reason why it can not be classed as a sirup prepared for that purpose. It serves the purposes both of sweetening and flavoring, and this I understand is precisely the purpose served by so-called sirups used in soft drinks. I am of the opinion, therefore, that since "Phez" is sold in such form that it is not itself a soft drink but in that form is used as one of the ingredients to produce such a drink, it was clearly subject to the tax on prepared sirups imposed by the act of 1917.

Since, however, the Act of 1919 omitted the tax on prepared sirups, I find no tax levied by the act to which "Phez," if not suitable to be used as a beverage, is subject. Answering your questions I reply as follows:

1. The tax imposed by both the Act of October 3, 1917, and that of February 24, 1919, applies to bottled noncarbonated fruit juices, although somewhat concentrated, if as bottled they are reasonably suitable for use as beverages and are so used without the addition of water.

2. Such bottled fruit juices, when reasonably suitable for beverage purposes and so used only in a diluted form, are