(dissenting).
I must dissent from the majority opinion since, in my opinion, the transaction privilege tax statutes, A.R.S. § 42-1301 et seq., clearly require the result reached by the trial court in its judgment in favor of the appellees. These statutes are not so vague, uncertain or ambiguous as to require the statutory construction relied on in the majority opinion.
A.R.S. § 42-1309.A. states that the Transaction Privilege Tax,
“. . .is levied and there shall be collected by the commission privilege taxes measured by the amount or volume of business transacted by persons on account of their business activities, and in the amounts to be determined by the application of rates against values, gross proceeds of sales, or gross income, . . . .” (Emphasis added).
It is clear from the evidence that the appellants collected the “Luxury Privilege Tax” (A.R.S. § 42-1201 et seq.) as a part of their “gross income” or “gross proceeds of sales” as specifically defined by A.R.S. § 42-1301(5) and A.R.S. § 42-1301(6). The Supreme Court has held that the incidence of the “Luxury Privilege Tax” rests on the person engaged in the business of selling specified luxuries and is paid to the state for the privilege of engaging in the sales of luxury goods. Stults Eagle Drug Co. v. Luke, 48 Ariz. 467, 62 P.2d 1126 (1936). The Supreme Court has also held that the transaction privilege tax itself, when passed on to a customer by the retailer, constitutes a part of the retailer’s “gross income” or “gross proceeds of sales”. State Tax Commission v. Quebe-deaux Chevrolet, 71 Ariz. 280, 226 P.2d 549 (1951).
Based upon the foregoing authorities, it is my opinion that the Luxury Privilege Tax, collected from the customers as a part of the retailer’s sale price of cigarettes, became a part of the retailer’s “gross income” and “gross proceeds of sales”, as defined by A.R.S. § 42-1301, and therefore became subject to the transaction privilege tax, as provided in A.R.S. § 42-13Ó9.A., supra. I would affirm the judgment of the trial court.