Revenue Cabinet v. Bryant-Burnett Co.

WILHOIT, Judge,

dissenting.

I must respectfully dissent from the majority opinion. The majority holds that 103 KAR 26:070 exempts from the classification of retail sales the servicing and repair of tangible personal property which falls into the category of “fixtures.” As far as I can see, this regulation does nothing of the kind. It exempts the sale of fixtures themselves, but says nothing about exempting the sale of parts used to repair what has already become a fixture. On the other hand, I do not agree with the appellant that the transactions at issue were already made subject to sales tax by 103 KAR 27:150. That regulation deals with repairs to “tangible personal property.” The statute requires tangible personal property first of all be “personal property,” see KRS 139.160, but it is not denied that the air conditioners here were permanent fixtures and had become a part of the realty at the time they were repaired. Cf. Tarter v. Turpin, Ky., 291 S.W.2d 547 (1956).

As a general rule exemptions from taxation are not favored and all doubts are to be resolved against exemption. See Delta Air Lines, Inc. v. Commonwealth, Ky., 689 S.W.2d 14 (1985). The parts furnished *22by the appellee to its customers were tangible personal property, see KRS 139.160, and their delivery to the customers was a retail sale. See KRS 139.100; KRS 139.-260. In the absence of some specific exemption, these transactions appear to have been subject to the sales tax.

I do agree with the appellee, however, that the record seems to support a reduction in the assessment of sales tax to take into account the appellee’s annual growth in sales over the assessment period. I would remand this case for an appropriate reduction.