I concur in vacating the order of the Tax Commission and remanding the matter for further proceedings. I concur in most of the conclusions reached in the prevailing opinion and in the reason given therefor. More specifically I concur in the holding that the term "purchase price" upon which our state sales tax is computed, is the price the purchaser pays, not including the federal luxury tax. In other words, the federal luxury tax is excluded from the purchase price in computing the state sales tax. I concur in the holding *Page 522 that the assessment of a 10% penalty was warranted. I also concur in the holding that the retailer cannot set off against a deficiency in tax collections, any overcharges or excess remitted by him in a prior reporting period.
But I must dissent from the holding that the retailer can under the law offset against any undercollections the overcharges or excess collected on other sales during the reporting period. The tax is specifically levied on the consumer; the retailer isrequired to collect the tax from the purchaser (consumer) on each sale (not merely to remit 2% of his sales); the statute expressly requires the retailer to remit to the state any and all overcharges or excess collected on any sale, in addition to the regular sales tax. As pointed out by Mr. Justice McDONOUGH this is to prevent discrimination between customers. Otherwise a designing retailer could overcharge on some sales and knowingly not collect on others, to meet competition from other sources. Such conduct is not fair dealing either with the overcharged customer nor with the competing retailer. To read any such interpretation into an act as specific on the matter as ours, is far beyond the elastic powers of the English language and of judicial interpretation, as I understand them.
TURNER, J., concurs in the views expressed by Mr. Chief Justice LARSON. *Page 523