dissenting.
This Court misapplies the doctrine of Sumners v. Sumners, 701 S.W.2d 720 (Mo. banc 1985), thereby allowing this taxpayer to reap a windfall.
In King v. L & L Marine Service, Inc., 647 S.W.2d 524 (Mo. banc 1983), this Court held that federal constitutional considerations precluded the state of Missouri from applying its use tax statutes to a transaction legally indistinguishable from the one now before us. The opinion made it clear that the tax was due and payable under our statutes, but yielded to federal compulsion as it saw it.
In Director of Revenue v. Superior Aircraft, 734 S.W.2d 504 (Mo. banc 1987), we realized that we had viewed the federal authorities too restrictively and overruled L & L Marine. Both L & L Marine and Superior Aircraft demonstrate that the transaction now in issue was taxable under Missouri law.
The taxpayer in this case expected a benefit from purchasing the aircraft in another state and making a nominal use of the plane before exercising “the privilege of storing, using or consuming” its purchase in Missouri. § 144.610, RSMo 1986. But there was no detrimental reliance. When asked at oral argument what the taxpayer might have done if it had known of the *379Superior decision, counsel replied that it might have made the purchase in Missouri, paying Missouri sales tax rather than Missouri use tax. By the result of the principal opinion, the state of Missouri loses twice. It loses the possible sale and the attendant tax, and also loses the benefit of the use tax designed to protect the Missouri treasury from out-of-state purchases designed for use in Missouri.
The first part of Sumners is clearly satisfied. The second prong of the Sumners test, however, does not apply because the policy of our use tax statutes is thwarted if the taxpayer brings property into Missouri without paying the use tax our statutes demand. The third prong does not apply because the taxpayer is seeking a windfall in the form of tax avoidance, and this interest is outweighed by the state’s proper interest in protecting its revenue.
Sumners applied a statute retroactively, and so its promulgation of guidelines for prospective application is suspect. Retroactive application of substantive holdings is the general rule, and prospective application should be decreed only in exceptional eases of which this is not one.
The majority attempts to distinguish Air Evac EMS, Inc. v. Director of Revenue, 779 S.W.2d 573 (Mo. banc 1989), by arguing that case is factually distinguishable. On the contrary, the two cases are virtually identical. In Air Evac, this Court stated:
The evidence was stipulated that each of the aircraft was purchased outside Missouri, was reconditioned and refueled en route, and then was flown by a corporate officer to the base of operations in West Plains, Missouri. An incidental stop was made during one flight to drop off the corporation officer in Arkansas.
In the present case, Trans UCU took delivery in Delaware and flew immediately to New York. Apparently on the same day, the plane was flown to Missouri. The flight to New York could easily be characterized as an incidental stop, just as the flight to Arkansas was in Air Evac. Therefore, the arguments presented by Trans UCU have been previously rejected by this Court, and precedent dictates these arguments be rejected again. This Court should apply the correct law, just as it did in Air Evac.
I would affirm the decision.