(dissenting).
The stipulated issue in this case was whether or not taxes were owed to the State of South Dakota. The trial court found on the stipulated record as follows:
Although the Certificate of Assessment lists the type of tax as use tax and SDCL 10-59-8 deems the Certificate of Assessment as prima facie correct, this presumption has been overcome by the Plaintiff. The record is replete with evidence that the tax assessed was for sales tax: the Certificate of Assessment says the reasons for the assessment are “unreported charges for service performed in South Dakota” (Emphasis added); Taxation of services is covered by SDCL ch. 10-45, specifically 10-45-4, the Retail Sales and Service Tax chapter, and the Audit Report indicates that the tax owing is for service charges and that the use tax had previously been paid and accepted; and the deposition exhibits from the auditor’s file lists the “reason or description” of the tax as “Totalisator Service Charge” and also has S4 or S5 (meaning sales tax of 4% or 5%, respectively) listed in the “Code” column.
It is the opinion of this Court that the assessed taxes were for sales tax, the legal incidence being on Plaintiff, and therefore, since the legal incidence was on Plaintiff in one instance and on Defendant in the other instance (under SDCL 42-7) ... SDCL 42-7-89 does not apply and the taxes were rightfully owed to the State of South Dakota. Thus, Defendant is obligated under the contract to reimburse Plaintiff for the amount paid.
This court only overturns the findings of the trial court when they are clearly erroneous as evidenced by the record on appeal. In re Proceedings for Deposit in Court, *379417 N.W.2d 187, 188 (S.D.1987). In applying this standard, the reviewing court must be left with a definite and firm conviction that a mistake has been made based on all the evidence in the record. Wiggins v. Shewmake, 374 N.W.2d 111, 114 (S.D.1985).
The trial court found that SDCL 42-7-89 was not applicable to the taxes in issue. What more need be done under the parties’ stipulated issue. Therefore, I would affirm the trial court. There seems to be no need to march the parties down the hill only to have them march up again based on this record,