Weiss v. Best Enters.

Richard A. WEISS, Director, Arkansas
Department of Finance and Administration v.
BEST ENTERPRISES, INC.

95-527                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
                Opinion delivered March 18, 1996


1.   Taxation -- gross-receipts tax -- rentals of tangible personal
     property are taxable. -- Rentals of tangible personal property
     are taxable under Ark. Code Ann.  26-52-103(a)(3)(B) (Repl.
     1992).

2.   Taxation -- gross-receipts tax -- determination of whether
     transaction constitutes taxable lease -- appellate court looks
     to factors involved. -- In determining whether a transaction
     constitutes a lease that is taxable under the Gross Receipts
     Act, the appellate court looks to all of the factors involved
     to determine the true nature of the transaction; no specific
     words are necessary to create a lease, but the words that are
     used must have the effect of divesting the owner of the right
     to the possession of his property and, for a consideration,
     investing the other party with the right to possession for a
     designated period or at will.

3.   Taxation -- gross-receipts tax -- transactions were leases. --
     - Where appellee, for a consideration, divested itself for a
     period of time of the right to the possession of its portable
     toilets, and invested the customer with the right of
     possession of its property, the transactions fit within the
     definition of leases, and the supreme court held that they
     were leases.

4.   Taxation -- gross-receipts tax -- exemption for public utility
     providing sewer services -- appellee was not solely providing
     sewer services. -- Where the chancellor ruled that appellee
     was not in the business of leasing portable toilets but was a
     public utility providing sewer services, which are exempt from
     the gross-receipts tax, the supreme court, noting that
     sanitation services were provided for the portable toilets
     leased by appellee, that the leasing of the portable toilets
     was an integral part of appellee's business, and that appellee
     offered testimony that it would service toilets owned by
     another company but did not deny that it primarily serviced
     its own toilets, concluded that it could not be said that
     appellee was solely providing sewer services. 

5.   Taxation -- gross-receipts tax -- charge for services
     constituted part of gross proceeds -- entire proceeds subject
     to taxation. -- Because the non-taxable service was included
     as part of the total consideration received from the rental of
     the portable toilets, the charge for services constituted part
     of the gross proceeds, and the entire proceeds were subject to
     taxation.

6.   Taxation -- gross-receipts tax -- "gross receipts" and "gross
     proceeds" defined. -- Under Ark. Code Ann.  26-52-103(a)(4)
     (Repl. 1992), "gross receipts" or "gross proceeds" are defined
     as the total amount of consideration for the sale of tangible
     personal property and such services specifically provided for
     by the Arkansas Gross Receipts Act, whether the consideration
     is in money or otherwise, without any deduction on account of
     the cost of the properties sold, labor service performed,
     interest paid, losses, or any expenses whatever.

7.   Taxation -- gross-receipts tax -- sales tax must be paid on
     price received for article without deduction for value of
     labor. -- Where one sells an article in the preparation of
     which for sale he has expended labor that adds to its value
     and was necessary to make it salable, he must pay the sales
     tax on the price received, without deduction for the value of
     the labor performed.

8.   Taxation -- gross-receipts tax -- taxpayer required to keep
     adequate records -- burden of refuting assessment upon
     taxpayer. -- Under Ark. Code Ann.  26-18-506(a) & (d) (Repl.
     1992), a taxpayer is required to keep adequate tax records;
     where a taxpayer fails to maintain the required records, the
     Director may make an estimated assessment of tax due because
     the burden of proof of refuting the estimated assessment is
     upon the taxpayer.

9.   Taxation -- gross-receipts tax -- taxpayer's records showed
     transactions were leases -- fully taxable mixed transactions -
     - appellee did not meet burden of refuting assessment. -- In
     the present case, the taxpayer's records showed that the
     transactions were leases; the transactions were the type of
     mixed transactions that are fully taxable under Arkansas case
     law; because appellee did not maintain the required records,
     the burden of refuting the assessment was upon the taxpayer,
     and appellee did not meet that burden.

10.  Taxation -- gross-receipts tax -- dominant-use test rejected.
     -- The supreme court declined to adopt a dominant-use test for
     the present case because to have done so would have required
     rejection of the reasoning of the established case law.

11.  Taxation -- gross-receipts tax -- exemption for public
     utilities or public-service companies. -- Under Ark. Code Ann.
      26-52-301(2) (Repl. 1992), utilities or public-service
     companies are subject to the gross-receipts tax, except for
     their transportation services, sewer services, and sanitation
     services.

12.  Taxation -- gross-receipts tax -- difference between exemption
     and exclusion -- taxpayer must prove entitlement to exemption
     beyond reasonable doubt. -- The difference between an
     exemption and an exclusion is that an exemption pertains to
     sales that would be covered were they not specifically
     exempted from the Gross Receipts Act, while exclusion is
     simply not included in the first place; an exemption
     presupposes a liability, is properly applied only to a grant
     of immunity to persons or property that otherwise would have
     been liable to assessment, and exists only by virtue of
     constitutional or statutory provisions; a taxpayer must prove
     entitlement to an exemption beyond a reasonable doubt.

13.  Taxation -- gross-receipts tax -- appellee failed to prove
     exemption from taxation as utility or public service. -- The
     supreme court concluded that appellee failed to prove beyond
     a reasonable doubt that it was exempt from taxation as a
     utility or public service where it did not establish that it
     was regulated by the Arkansas Public Service Commission or the
     Arkansas Transportation Commission, that a city, state board,
     or commission had authorized it to service a territory, or
     that its rates were regulated by an official agency.

14.  Utilities -- public utility distinguished from private
     entrepreneurship. -- A public utility is entitled to a
     guaranteed but limited return on its investment, and it cannot
     pick and choose whom it will serve, while a private
     entrepreneurship is entitled to pick and choose whom it will
     serve but is not entitled to a guaranteed return on its
     investment; the term "public utility" implies a public use and
     service to the public, and the principal determinative
     characteristic of a public utility is service to, or a
     readiness to serve, an indefinite public that has a legal
     right to demand and receive its services or commodities; a
     public utility holds itself out to the public generally and
     may not refuse any legitimate demand for service, while a
     private business independently determines who it will serve;
     the record was devoid of any evidence that appellee was
     required to serve any area or indefinite public or that it was
     entitled to a return on its investment.  

15.  Utilities -- lease and service of toilet does not fit within
     definition of public-utility sewer service -- appellee failed
     to prove exemption as public sewer service -- reversed and
     dismissed. -- The lease and service of a toilet does not fit
     within the definition of a public-utility sewer service; the
     supreme court held that appellee failed to prove beyond a
     reasonable doubt that it was exempt from the gross-receipts
     tax as a public sewer service and reversed and dismissed the
     chancellor's refund order.


     Appeal from Pulaski Chancery Court; Collins Kilgore,
Chancellor; reversed and dismissed.
     Joyce Kinkead, for appellant.
     Deininger Law Firm, by: Neil Deininger and Reba M. Wingfield,
for appellee.

     Robert H. Dudley, Justice.March 18, 1996   *ADVREP2*





RICHARD A. WEISS, DIRECTOR
ARKANSAS DEPARTMENT OF FINANCE
AND ADMINISTRATION,
                    APPELLANT,

V.

BEST ENTERPRISES, INC.,
                    APPELLEE.



95-527


APPEAL FROM THE DECISION OF THE
PULASKI COUNTY CHANCERY COURT,
NO. 94-3630,
HON. COLLINS KILGORE,
CHANCELLOR,




REVERSED AND DISMISSED.



                   Robert H. Dudley, Justice.


     Best Enterprises, Inc., charges a fee to place its portable
toilets at customers' sites.  The fee includes charges for pumping,
cleaning, sanitization, and waste disposal services for the
toilets.  The Department of Finance & Administration audited Best's
records, administratively ruled that Best's operation was subject
to the gross-receipts tax, and assessed a deficiency.  Best paid
the assessment, penalty, and interest under protest and filed suit
for judicial relief in the chancery court.  See Ark. Code Ann. 
26-18-406(a)(1) (Repl. 1992).  The chancellor ordered the tax,
penalty, and interest refunded.  We reverse and dismiss.
     In its complaint, Best alleged that Ark. Code Ann.  26-52-
103(a)(3)(E) excludes from gross-receipts taxation, with certain
exceptions, furnishing or rendering of a service, and that Ark.
Code Ann.  26-52-301(2) exempts sewer services from the gross-
receipts tax.  The Director answered that Best's lease of portable
toilets was not excluded from taxation because the lease was an
integral part of the business and, since the lease and the
attendant cleaning services were not separated, it contended that
the transaction was subject to taxation.  The Director additionally
answered that Best was not exempt from taxation as a sewer service
because Best is not a utility or public service and only those
entities are exempt.     
     The facts, which are largely undisputed, show that Best
purchases portable toilets out of state, takes the toilets to its
base of operation in Cabot and, from there, delivers the toilets to
the customers' sites.  After placing a portable toilet on a
customer's site, Best provides pumping, cleaning, sanitation, and
waste disposal services for the unit.  It charges one fixed price
for both the use of portable toilets and the attendant services. 
The fixed price is determined by using a chart that was formulated
by Best.  The fixed price includes the cost of the toilet and other
equipment such as the service truck and chemicals, toilet tissue,
gloves, boots, and uniforms; the cost of fuel for its truck and
time for travel by service personnel to the site; and the cost of
labor.  The cost of equipment constitutes about eleven percent of
the fixed price, and the cost of toilets amounts to about five
percent of the fixed price. 
     When a customer calls for a portable toilet, Best inquires
about the number of people who will use the facility, the location,
and the length of time the toilet or toilets will be needed.  After
receiving the information, Best determines the fixed price by using
its chart.  The customer signs a written contract.  The toilet is
delivered and subsequently serviced at least once a week.  The
frequency of service depends upon the number of people using the
toilet.  If a toilet is overused, the customer is informed and
either frequency of service is increased or the number of toilets
is increased, and the fixed price is increased.  The customer is
billed every four weeks.
     Most of the portable toilets are leased to contractors for use
at construction sites.  A six-month lease would be considered a
short lease; some toilets have been on site since 1987.  Best will
supply a toilet for only one week, but the fixed charge is about
the same as for four weeks.
     Servicing the toilets includes pumping waste to the truck,
recharging the holding tank with chemicals, deodorizing, cleaning,
disinfecting, replacing toilet tissue, removing graffiti, and
maintenance.  The waste is transported by a service truck to Cabot
where it is stored in larger tanks until disposed at a municipal
waste-water treatment facility.  
      The chancellor ruled that providing portable toilets to
customers did not constitute the rental of tangible personal
property, but rather that Best is engaged in providing sewer and
sanitation services which are exempt from taxation.  We reverse and
dismiss.  
     The Director's first point of appeal is that the chancellor
erred in ruling that providing portable toilets did not constitute,
in part, the rental of tangible personal property.  The point is
well taken.  
     Rentals of tangible personal property are taxable.  Ark. Code
Ann.  26-52-103(a)(3)(B) (Repl. 1992).  In determining whether a
transaction constitutes a lease that is taxable under the gross
receipts act, we look to all of the factors involved to determine
the true nature of the transaction.  Leathers v. A & B Dirt Movers,
Inc., 311 Ark. 320, 844 S.W.2d 314 (1992).  No specific words are
necessary to create a lease, but the words that are used must have
the effect of divesting the owner of the right to the possession of
his property and, for a consideration, investing the other party
with the right to possession for a designated period or at will. 
Harbottle v. Central Coal & Coke Co. 134 Ark. 254, 203 S.W. 1044
(1918).  Best's form contract states that it will "supply the
sanitation units" and that the customer will "retain absolute and
sole control, possession, and custody of the sanitation units and
return such units to the contractor at the end of the service
period."  It further provides that if the toilet is damaged, other
than from ordinary wear and tear, the customer is liable for the
damages, the customer cannot make alterations or make attachments
to the toilets without Best's permission, and the customer will
return the toilet to Best at the end of the contract period.  One
of Best's exhibits introduced at trial was basic industry data
published by the School of Business and Public Administration of
Howard University.  It provides: "As a part of the cost of renting
units, the portable sanitation contractor services on a regular
basis."  One of Best's employees admitted that the customers
frequently called the transaction a rental of portable toilets.
     In summary, Best, for a consideration, divested itself for a
period of time of the right to the possession of its portable
toilets, and invested the customer with the right of possession of
its property.  The transactions fit within the definition of
leases, and we hold that they were leases.  Similarly, a Tennessee
Court of Appeals recently held that providing portable toilets to
customers constituted a lease of toilets.  Essary v. Huddleston, WL
384985 (Tenn. App. 1995).
     The chancellor ruled that Best was not in the business of
leasing portable toilets, but rather was a public utility providing
sewer services, which are exempt from the gross-receipts tax.  The
Director also assigns this part of the ruling as error.  The
assignment has merit for two reasons.  
     First, sanitation services are provided for the portable
toilets leased by Best.  Manifestly, the leasing of the portable
toilets is an integral part of Best's business.  Best offered
testimony that it would service toilets owned by another company,
but it did not deny that it primarily serviced its own toilets. 
Thus, it cannot be said that Best was solely providing sewer
services. 
     Second, it is undisputed that part of the fixed charge is
related to the cost of the toilets.  Best estimated this to be
approximately five percent of the charge.  If the charges for the
toilets and services had been separately stated, the amount charged
for services would not have been taxable.  However, since the non-
taxable service was included as part of the total consideration
received from the rental of the portable toilets, the charge for
services constitutes part of the gross proceeds, and the entire
proceeds are subject to taxation.
     In Ferguson v. Cook, 215 Ark. 373, 220 S.W.2d 808 (1949), a
monument dealer sought to deduct the cost of labor necessary to
make and install monuments from the sales price.  We held that the
entire sales price was subject to the tax because the statute that
is now codified as Ark. Code Ann.  26-52-103, states in pertinent
part:
          "Gross receipts" or "gross proceeds" means the total
     amount of consideration for the sale of tangible personal
     property and such services as are herein specifically
     provided for, whether the consideration is in money or
     otherwise, without any deduction on account of the cost
     of the properties sold, labor service performed, interest
     paid, losses, or any expenses whatever.
Ark. Code Ann.  26-52-103(a)(4) (emphasis added).  We concluded
that "where one sells an article in the preparation of which for
sale he has expended labor, which adds to its value and was
necessary to make it salable, he must pay the sales tax on the
price received, without deduction for the value of the labor
performed."  Ferguson v. Cook, 215 Ark. at 376, 220 S.W.2d  at 810
(emphasis added).
     In Larey v. Dungan-Allen, 244 Ark. 908, 428 S.W.2d 71 (1968),
the appellee taxpayer was a corporation engaged in commercial
photography.  Id. at 908, 428 S.W.2d  at 72.  The Director sought to
tax it under the section of the act that levies the tax under
"photography of all kinds."  Id.  The taxpayer argued that eighty-
five percent of its revenue was recompense for services because in
the course of its business, its employees "frequently [had] long
consultations with their patrons about matters such as advertising
layouts, promotional planning, material for magazine publication,
and other activities going beyond the mere taking and developing of
pictures."  Id. at 909, 428 S.W.2d  at 72.  One of the principal
stockholders testified that taking pictures was "the least of what
they [did]."  Id.  The stockholders offered testimony that for a
day's work an advertising agency might be charged $200 for
photographic services and $10 for five different pictures.  Id. at
910, 428 S.W.2d  at 72.  The taxpayer argued that "the incidence of
the gross-receipts tax should be similarly divided between
nontaxable revenue from professional services and taxable revenue
from the taking of pictures."  Id.  We stated that we had
previously rejected such an argument in Ferguson v. Cook, 215 Ark.
373, 220 S.W.2d 808 (1949).  We concluded by stating that while the
tax would not apply in instances where the taxpayers "were paid for
services only, such as consultations, without any photographs being
involved ... the principle cannot be extended to the point of
separating the sale of the photograph from the exercise of that
skill `which adds to its value and was necessary to make it
salable.'"  Larey v. Dungan-Allen, 244 Ark. at 911, 428 S.W.2d  at
73 (citation omitted).
     In Ragland v. Miller Trane Service Agency, 274 Ark. 227, 623 S.W.2d 520 (1981), the taxpayer was in the business of inspecting,
servicing, and repairing commercial heating and cooling devices and
had two different types of contracts.  Id. at 228, 623 S.W.2d  at
521.  The first was an "inspection only" contract, and the Director
agreed it was nontaxable.  Id. at 229, 623 S.W.2d  at 521.  The
second contract provided for the taxpayer to maintain and repair
the units, in addition to inspecting them, a minimum of three times
a year.  Id.  The trial court found that the full-coverage contract
could be broken down into component parts for the purposes of
collecting the gross receipts tax.  In reversing, we stated that,
under the rationale of our established case law, the inspection
services enhanced the value of the full coverage contract, and 
increased the marketability of the taxable services; therefore, the
entire transaction was taxable.  Id. at 231, 623 S.W.2d  at 522.
     Most recently, in Leathers v. A&B Dirt Movers, Inc., 311 Ark.
320, 844 S.W.2d 314 (1992), the taxpayer was a dirt hauler who
contended that it provided the nontaxable service of hauling free
dirt.  Id. at 322, 844 S.W.2d  at 315.  The chancellor ruled that
the transactions were not taxable.  Id.  We reversed because the
taxpayer's records made the transaction appear as though it
involved a sale of dirt, even though the record was devoid of any
direct testimony that proved the sale of dirt.  Id. at 330, 844 S.W.2d  at 319.  We held that Ark. Code Ann.  26-18-506(a) & (d)
(1992) requires a taxpayer to keep adequate tax records, and when
a taxpayer fails to maintain the required records, the Director may
make an estimated assessment of tax due, as "the burden of proof of
refuting this estimated assessment is upon the taxpayer."  Id. at
325, 844 S.W.2d at 316-17; Ark. Code Ann.  26-18-506(d).  We
concluded that the transactions were taxable, because they involved
the transfer and possession of tangible personal property. 
     In summary, just as in Leathers v. A&B Dirt Movers, Inc., the
taxpayer's records show the transactions were leases.  The
transactions were the type of mixed transactions that are fully
taxable under Larey v. Dungan-Allen and its progeny.  Finally,
because Best did not maintain the required records, the burden of
refuting the assessment was upon the taxpayer, Leathers v. A&B Dirt
Movers, Inc., 311 at 325, 844 S.W.2d  at 316-17, and Best did not
meet that burden.
     Best urges us to adopt a "dominant-use test" for this case. 
To do so would require us to reject the reasoning of the above
cases, and we decline to do so.
     The chancellor ruled that Best was entitled to a refund on the
additional ground that it provided sewer and sanitation services in
the furtherance of public health, and those services are
nontaxable.  The Director assigns the ruling as error.  
     Arkansas Code Annotated  26-52-301 levies an excise tax upon
utilities or public service companies "except transportation
services, sewer services, and sanitation or garbage collection
services."  Id.  26-52-301(2).  In short, utilities or other
public services are subject to the tax, except for their
transportation services, sewer services, and sanitation services.
To prove that it comes within the exemption, Best must have proved
that it was a utility or public service company engaged in sewer
services.    
     In Ragland v. Meadowbrook Country Club, 300 Ark. 164, 777 S.W.2d 852 (1989), we said, "The difference between an exclusion
and an exemption is that an exemption pertains to sales that would
be covered were they not specifically exempted from the Act, while
exclusion is simply not included in the first place."  Id. at 168,
777 S.W.2d  at 854.  Stated differently, an exemption "presupposes
a liability, and is properly applied only to a grant of immunity to
persons or property which otherwise would have been liable to
assessment, and exists only by virtue of constitutional or
statutory provisions."  84 C.J.S. Taxation  215 at 411 (1954).  A
taxpayer must prove entitlement to an exemption beyond a reasonable
doubt.  City of Fayetteville v. Phillips, 320 Ark. 540, 899 S.W.2d 57 (1995).  Best failed to prove beyond a reasonable doubt that it
was exempt from taxation as a utility or public service.
     Best did not prove that it was regulated by the Arkansas
Public Service Commission or the Arkansas Transportation
Commission, that a city, state board, or commission had authorized
it to service a territory, or that its rates were regulated by an
official agency.  In short, it failed to prove that it was a public
utility as contemplated by Ark. Code Ann.  23-1-101. 
      In Quinn-Moore v. Lambert, 272 Ark. 324, 614 S.W.2d 230
(1981), we said that a public utility is entitled to a guaranteed
but limited return on its investment, and it cannot pick and choose
whom it will serve, while a private entrepreneurship is entitled to
pick and choose whom it will serve, but is not entitled to a
guaranteed return on its investment.  Id. at 328, 614 S.W.2d  at
232.  Indeed, the term "public utility" implies a public use and
service to the public, and the principal determinative
characteristic of a public utility is service to, or a readiness to
serve, an indefinite public that has a legal right to demand and
receive its services or commodities.  See 64 Am. Jur. 2d, Public
Utilities  1 at 549 (1972).  A public utility holds itself out to
the public generally and may not refuse any legitimate demand for
service, while a private business independently determines who it
will serve.  The record is devoid of any evidence that Best is
required to serve any area, or indefinite public, or that it is
entitled to a return on its investment.  
     In addition, the lease and service of a toilet does not fit
within the definition of a public utility sewer service.  Section
8-4-102 of the Arkansas Code Annotated defines "sewage" and "sewer
system" as follows: 
          (1) "Sewage" means the water-carried waste products
     from residences, public buildings, institutions, or other
     buildings, including the excrementitious or other
     discharge from bodies of humans or animals, together with
     such groundwater infiltration and surface water as may be
     present.
                               ...
          (5) "Sewer system" means pipelines or conduits,
     pumping stations, and force mains, and all other
     constructions, devices, and appliances appurtenant
     thereto, which are used for conducting sewage or
     industrial water or other wastes to a point of disposal.
Ark. Code Ann.  8-4-102(1) & (5) (Repl. 1993).  In summary, Best
failed to prove beyond a reasonable doubt that it was exempt as a
public sewer service.
     We need not address the Director's final point of appeal.
Reversed and dismissed.
     Newbern and Corbin, JJ., dissent.MArch 18, 1996  *ADVREP2-A*


                                   95-527
RICHARD A. WEISS, DIRECTOR
ARKANSAS DEPARTMENT OF FINANCE
AND ADMINISTRATION

               Appellant

          v.

BEST ENTERPRISES, INC.

               Appellee            Dissenting Opinion





                David Newbern, Associate Justice

     In Ferguson v. Cook, 215 Ark. 373, 220 S.W.2d 808 (1949), a
dealer in cemetery monuments reported to the tax authority only 50%
of the gross proceeds of each sale because he attributed the other
50% to labor expended in the erection of the monuments.  The case
was tried on stipulations, and there was no evidence as to what
might actually have been attributable to labor expended in the
erection of monuments or in the creation of the monuments,
engraving, etc.  In that circumstance, we held the entire amounts
taxable.  The result in the Ferguson case also seems contrary to a
statement of general principle written by Justice Frank G. Smith in
that opinion, a statement with which I totally agree, as follows:

          This language appears to mean, and we so construe it,
     that where one sells an article in the preparation of which
     for sale he has expended labor, which adds to its value and
     was necessary to make it salable, he must pay the sales tax on
     the price received, without deduction for the value of the
     labor performed.

     Ark. Code Ann.  26-52-103(a)(2)(E) (Supp. 1995) provides that
"'sale' shall not include the furnishing or rendering of services,
except as otherwise provided in this section."  Section 26-52-
103(a)(4), in pertinent part provides:

          "Gross receipts" or "gross proceeds" means the total
     amount of consideration for the sale of tangible personal
     property and such services are herein specifically provided
     for, whether the consideration is in money or otherwise,
     without deduction on account of the cost of the properties
     sold, labor services performed, interest paid, losses or any
     expenses whatsoever.

     The confusion caused by the outset provision that a "sale"
does not include services followed by a definition of "gross
proceeds" which includes "labor services performed" has resulted in
uncertainty and in conflicting decisions.  For example, Ragland v.
Meadowbrook Country Club, 300 Ark. 164, 777 S.W.2d 852 (1989), we
held that the sale of food and beverages did not include the 15%
"gratuity" included in the price to the customer for service.  We
distinguished Belvedere Sand & Gravel Co. v. Heath, 259 Ark. 767,
536 S.W.2d 312 (1976), in which we held taxable the total amount
charged to customers by a sand and gravel company for its products,
including the labor supplied to the taxpayer company by a
contractor for delivery to its customer.  Our distinction between
the cases seemed to be that the "gratuity" in the Ragland case was
added to the cost of the food and beverages after the sale whereas
the delivery cost of the sand or gravel in the Belvedere case was
somehow more integral to the sale.  That is a distinction without
a difference.
     We are on the wrong track, and we have been on it since the
decision in the Ferguson case.  It is obvious to me that the
General Assembly intended that any service which goes into the
creation of an item for sale and indeed adds to its value should be
taxable.  In view, however, of the general statutory definition of
"sale" which excludes services, services ancillary to a sale should
not be included.  Such an interpretation would be consistent with
what Justice Smith said in the Ferguson case, albeit probably not
consistent with the result reached there. 
     The unreasonableness of the interpretation given by the
majority opinion, and its portent for continued uncertainty in this
area, is underlined by the parties' apparent agreement that we will
allow a taxpayer to avoid the tax on such services if they are
"separately stated" in the bill to the customer.  The majority
opinion states, "Since the non-taxable service was included as part
of the total consideration received from the rental of the portable
toilets, the charge for services constitutes part of the gross
proceeds, and the entire proceeds are subject to taxation."  That
suggests a merchant can avoid taxation on services if they are
billed separately from the charge for the item sold, regardless
whether the services helped create the value of the item or were
ancillary to the sale.   Surely that cannot be the intent of the
General Assembly.  If services ancillary to a sale are to be taxed,
the General Assembly could clearly say so. In the absence of such
statutory language we should not permit the gross receipts tax on
sales to be applied to such services.
     I respectfully dissent.
     Corbin, J. joins in this dissent.