dissenting. I simply cannot agree with the majority’s conclusion that Osborne’s practice of charging a fee for the late return of empty gas cylinders constitutes a “sale” within the meaning of R.C. 5739.01(B). Accordingly, I dissent.
In my view the law which controls this case is set forth in the syllabus of Grabler Mfg. Co. v. Kosydar (1973), 35 Ohio St. 2d 23, 64 O.O. 2d 14, 298 N.E. 2d 590:
“Where a leasing contract provides that liquidated damages be paid in the event of a breach thereof and the property which is the subject of the lease is no longer used or available for use by the defaulting party, the monies paid as damages are not included within the meaning of ‘sale’ and ‘selling,’ as used in R.C. Chapter 5739.01, and ‘price,’ as used in R.C. 5739.02; hence they are not subject to the Ohio sales tax.”
The majority relies on Youngstown Sheet & Tube Co. v. Lindley (1978), 56 Ohio St. 2d 303, 10 O.O. 3d 423, 383 N.E. 2d 903, which distinguished Grabler and held that demurrage charges are generally subject to Ohio sales and use taxes, though the particular charges at issue were excepted from tax under R.C. 5739.01(B)(11). The Youngstown Sheet & Tube Co. court held that demurrage charges are not merely damages, and that “[b]ecause * * * [the taxpayer’s] demurrage costs are paid in exchange for the use of something, they fall within the purview of Ohio’s use and sales tax provision.” Id. at 307, 10 O.O. 3d at 425, 383 N.E. 2d at 905.
As is evident from the record, the facts at issue in this case differ in several respects from those in Youngstown Sheet & Tube Co. First, the Tax Commissioner proved, in testimony before the board, that the railroad cars at issue in Youngstown Sheet & Tube *179Co. were at times used beyond the free period as temporary warehouses once empty. In the instant case there is no evidence to suggest that the cylinders were of any use to Osborne’s customers once the gas had been removed. Second, since empty railroad cars are reusable, the Youngstown Sheet & Tube Co. court correctly held that the demurrage charges were to secure compensation for that use, in addition to encouraging prompt return of the empty cars. I might add that the charges here were not “demurrage” in the strict sense of that word. They were “late charges,” a term with which everyone is acquainted (including this writer) save one — the Tax Commissioner. I would stress that the sole purpose for the charges in the instant case is to compel return of the empty cylinders at the end of the free period.
Recognition of these two related distinctions compels the conclusion that Youngstown Sheet & Tube Co. is inapposite here. The charges assessed by Osborne are liquidated damages in the nature of a penalty, late charges if you will, and are not compensation. Once the cylinders are empty they are “no longer used or available for use by” Osborne’s customers. Thus the syllabus of Grabler clearly controls, and there is no “sale” within the meaning of R.C. 5739.01(B).
The majority deflects the importance of these points by discussing the burden of proof in tax cases and stating: “[N]o proof was offered that the cylinders were always empty at the end of the free-use period. If not empty, the cylinders certainly were available for use during the time the charges were assessed.” To me, at least, this distinction is irrelevant for tax purposes, and ignores the sole purpose for the charges, which is to compel the return of the cylinders. The fact that gas may still be removed from the cylinders beyond the free period is immaterial, as that use, if indeed it is “using” the cylinder, has no relationship to the charges assessed. In my view, penalty charges for the late return of property are not compensation simply because the property may have some incidental or peripheral use by the delinquent party. The charge is on the untimely return, and not on the use.
Accordingly, I would hold that the charges assessed by Osborne on the retention of cylinders beyond the free-use period are not subject to Ohio sales tax. Thus, I would reverse the judgment of the court of appeals.
Moyer, C.J., and Holmes, J., concur in the foregoing dissenting opinion.