Internal Revenue Service
Revenue Ruling

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 Rev. Rul. 62-44

1962-1 C.B. 209

Caution: Obsoleted by Rev. Rul. 69-227

IRS Headnote

A wind instrument consists of a plastic tube approximately 11 inches long. It has a removable plastic mouthpiece and has seven finger holes on one side and a thumb rest and finger hole on the other. Two musical scales may be played on it.

A percussion instrument consists of twelve metal tubes of the same diameter mounted in a frame. The tubes differ in length, graduating from approximately five inches to nine inches. The notes which they produce range from `middle C' to `G' above `high C.' It is played by striking the tubes with a wooden mallet.

Held , because of the limitations on the use of the articles, they are not generally suitable for the rendition of musical compositions or adaptable for teaching music and are not subject to the manufacturers excise tax on musical instruments imposed by section 4151 of the Internal Revenue Code of 1954.

Full Text

Rev. Rul. 62-44

Advice has been requested concerning the applicability of the manufacturers excise tax on musical instruments, imposed by section 4151 of the Internal Revenue Code of 1954, to sales by the manufacturer of the articles described below.

(1) A wind instrument .-This article consists of a plastic tube approximately 11 inches long and a removable plastic mouthpiece. It has seven finger holes on one side of the tube and a thumb rest and a finger hole on the other side. Two complete musical scales may be played on the article by manipulating the fingers over these holes and blowing into the mouthpiece.

(2) A percussion instrument .-This article consists of 12 metal tubes of the same diameter mounted in a frame. The metal tubes are graduated in length from approximately five inches for the smallest to nine inches for the longest. The notes which they produce range from `middle C' to `G' above `high C.' The article is played by striking the metal tubes with a wooden mallet.

The instruments are designed, advertised, and sold for use as tools to test musical potential and to develop and encourage interest in music for the purpose of preparing a student for the playing of a musical instrument. The selections that may be played on both the wind instrument and the percussion instrument by reason of the limitations in design and other characteristics of the devices are limited. Few musical compositions arranged for standard instruments can be played on these articles.

Section 4151 of the Code imposes a tax upon the sale of musical instruments by the manufacturer, producer, or importer thereof.

Under the provisions of section 48.4151-1(d) of the Manufacturers and Retailers Excise Tax Regulations, the term `musical instruments' includes all wind, reed, string, percussion or electronic instruments used to produce music, including but not limited to all types of pianos and organs, trombones, saxophones, violins, drums, xylophones, chimes, etc. The term does not include articles in the nature of toys or novelties which simulate musical instruments and which are unsuitable for use in playing musical compositions or in teaching music.

In determining whether a particular article is a musical instrument, consideration is given to a variety of factors. Among them are the primary purposes for which the article is designed; the quality of construction of the article; whether it is a type ordinarily used in the rendition of musical compositions, either in solo presentation or in connection with other musical instruments, or whether it is adaptable for teaching proficiency in the use of musical instruments. In considering the last two factors it is not essential that the article used in musical rendition or instruction be of a professional standard or quality. The aforementioned factors are not all inclusive, and no one of them is determinative of the taxability of a particular article.

The instruments here under consideration are widely used to test the musical potential of children and to encourage the instruction of music; they are of a design and quality comparable to toys or novelties which simulate musical instruments, and their relationship to the actual teaching of music is limited to determining whether children have sufficient natural musical ability to warrant the additional instruction required to teach them proficiency in the use of a standard musical instrument. Thus, these instruments are not `musical instruments' as defined in section 48.4151-1(d) of the regulations.

Based upon the foregoing, it is held that the articles described are not musical instruments within the meaning and intent of the law and regulations. Accordingly, the manufacturers' sales of such articles are not subject to the tax imposed by section 4151 of the Code.