(dissenting) — If the rule to be garnered from the majority is "bank holding companies are going to pay the business and occupation tax," then I suppose this case has some value. It will at least increase state revenues. The principles which the majority uses to reach this result are difficult to discern. Just as "Professor" Harold Hill in Meredith Wilson's Music Man declared that "River City's going to have a boys' band," so the Department of Revenue has determined Rainier Bancorporation's going to have a business and occupation tax.
How does the majority find that plaintiff is a "financial institution"? It states that "by loaning money to its subsidiaries Rainier's activities are similar or comparable to those of the aforementioned businesses [banks, loans, securities]." Majority opinion, at 674. Then, in its penultimate paragraph at page 674 the majority says:
Finally, it is important to remember that tax deductions must be narrowly construed. Cf. Evergreen-Washelli Memorial Park Co. v. Department of Revenue, 89 Wn.2d 660, 574 P.2d 735 (1978) (interpreting RCW 82.04.390, which exempts proceeds derived from the sale of real estate from the business and occupation tax). This, coupled with the fact that Rainier's activities are similar or comparable to that of a banking, loan or security business, compels us to conclude that Rainier is ineligible for the deduction from the B & 0 tax, as found under RCW 82.04.430(1).
Although the question of whether plaintiff is entitled to the deduction, i.e., whether it is exempt from being classified as not engaged "in banking, loan, security, or other financial businesses" (former RCW 82.04.430(1)), must be "narrowly construed" (majority opinion, at 674), simply to *676utter the phrase "narrowly construed" as a talisman is not enough. Just because the claimed exemption is not clearly spelled out in RCW 82.04.430(1) hardly gives rise to the denial of the exemption. See John H. Sellen Constr. Co. v. Department of Revenue, 87 Wn.2d 878, 558 P.2d 1342 (1976). There must be more. But since nothing more is offered by the majority, it must be that the real basis for decision is that "Rainier's activities are similar or comparable to" those of a banking, loan or security business. Majority opinion, at 674.
But having established its "rule" the majority, perhaps realizing the enormity of what it has done, slips away with "Our decision today is limited to holding companies, such as Rainier, which are engaged in a 'financial business'." The principle followed to reach this limitation appears to elude even the majority. At least no principle is included in its opinion. What the majority must have recognized, of course, is that its "rule" runs directly into the problem pointed out by the court in Sellen. In that case, the Department of Revenue attempted to bring a construction company, a brewery, a health care business, and a cemetery association within the ambit of a "financial business." As the court said in Sellen, at page 883:
If we adopt appellant's interpretation of RCW 82.04-.430(1), then few taxpayers, if any, making incidental investments of surplus funds could receive the deduction.
Under the majority position, a couple who borrows a substantial amount on say, an insurance policy, and lends it to a child with interest for that child's education, can expect a visit from the State Department of Revenue.
Concededly the majority does try to distinguish Sellen by pointing out that (1) of the money lent by plaintiff to its subsidiaries over one-half was borrowed from outside sources, and (2) a high percentage of plaintiff's income was derived from the interest on the loans to its subsidiaries. As to (1) its relevance is never discussed by the majority nor does a search of the statutes reveal any relevance. With regard to (2), the majority, although it appears to flirt with *677the idea, declares that it does "not hereby adopt a 'percentage test"'. Majority opinion, at 673 n.2. In neither instance, however, does the majority show how these facts, although interesting, tend to make plaintiff a financial institution. No connection is made between the fact and the definition. Both (1) and (2) are simply distinctions without a difference. They are facts but hardly principles.
What we have here is an interpretation of a statute which has been maintained by the Department of Revenue for over 30 years. The Department is then seized by a vision of new revenue particularly as it might come from a bank holding company and, without the bother of going to the legislature, changes its rule.
While it does not contest that it had not in over 30 years included holding companies of any kind under the definition of "financial institutions", the Department now says in its brief:
Sellen approved the Department's prior construction that the incidental investment of surplus funds did not constitute a financial business. However, the Sellen court said nothing about the Department's prior construction with regard to borrowing and lending money.
Put in its most favorable light, this current declaration by the Department can only be called disingenuous. To suggest that all along the Department's position, based on its previous declaration as to the interpretation of RCW 82.04.430(1), has been that borrowing and lending of the type engaged in by plaintiff brings it under the statute places too great a strain on credulity.
In fact, the test which had been used by the Department of Revenue and the only one which makes any sense and saves it from its tendentious position in Sellen and this case is whether the activity is one which deals with the public. The single relevant characteristic, unmentioned by the majority, which distinguishes an entity engaged in banking, loans or securities is that it is in the marketplace in a public, competitive business. Thirty-five years after the passage of RCW 82.04.430(1) this was clearly and *678explicitly recognized by the Department.
But it does not follow that every act of business or every investment and grant of the use of money is held to be financial business. . . . Where the activities involved are essentially in competition with financial businesses and this is a regular part of the taxpayer's normal business practice, the department believes that the activities constitute financial business and are subject to tax.
Department of Revenue, Excise Tax Bull. No. 368.04.224 (June 12, 1970). Plaintiff, of course, is not engaged in a public, competitive enterprise.
Defendant quotes with favor the Sellen court's views on the meaning of "financial businesses":
[T]he common meaning of the phrase contemplates a business whose primary purpose and objective is to earn income through the utilization of significant cash outlays.
Sellen, at 882. Although the majority states that in Sellen "we declined to conclusively define the term 'financial business'" (majority opinion, at 672), at the very least the Sellen court held that regardless of what other characteristics "financial businesses" may have, the earning of income would have to be a "primary purpose and objective." Sellen, at 882.
In this case it is undisputed that the purpose of the loans to its subsidiaries by plaintiff is not to "earn income" but rather to provide the subsidiaries with the funds they require in order to operate their business to the best advantage. This being so, it is hardly a "financial business" whose "primary purpose and objective is to earn income through the utilization of significant cash outlays." Sellen, at 882. By this court's own definition of what the term contemplates, the plaintiff does not qualify as a "financial business".
Maybe bank holding companies should be subjected to the business and occupation tax; perhaps they were overlooked by or unknown to the drafters of the statute. Certainly their gross revenues are a tempting source of income. The way to apply the tax is by action of the legislature. It *679should not be done by the Department of Revenue and this court ignoring precedent, avoiding rational analysis, and abandoning principle.
I dissent.
Brachtenbach, C.J., concurs with Dolliver, J.