(dissenting).
[¶ 25.] The majority opinion misconstrues the definition of “use” as that term has been legislatively defined and interpreted by the prior precedent of this Court. I agree with the majority opinion’s recognition that the use tax is aimed to remedy concerns that the state may lose tax revenue if taxpayers purchase out-of-state goods or services for in-state use and that local providers will lose business if those out of state purchases avoid tax liability. However, those concerns cannot justify the imposition of a tax unless that tax is clearly articulated in the statutory framework. As the following discussion demonstrates, the state’s remedy is legislative and not judicial.
[¶ 26.] The imposition of a use tax on the billing services is legally and factually unsupported.
*80[¶ 27.] In support of its assertion supporting imposition of the use tax Department relies upon the following statutory provisions:
10-4,6-2.1. Use tax — Tax imposed on use of services — Exemptions—“Related corporation” defined. For the privilege of using services in South Dakota, except those types of services exempted by § 10-46-17.3, there is imposed on the person using the service an excise tax equal to four percent of the value of the services at the time they are rendered. However, this tax may not be imposed on any service rendered by a related corporation as defined in subdivision (11) of § 10-43-1 for use by a financial institution as defined in subdivision (4) of § 10-43-1 or on any service rendered by a financial institution as defined in subdivision (4) of § 10-43-1 for use by a related corporation as defined in subdivision (11) of § 10-43-1. For the purposes of this section, the term related corporation includes a corporation which together with the financial institution is part of a controlled group of corporations as defined in 26 USC § 1563 as in effect on January 1, 1989, except that the eighty percent ownership requirements set forth in 26 USC § 1563(a)(2)(A) for a brother-sister controlled group are reduced to fifty-one percent. For the purpose of this chapter, services rendered by an employee for the use of his employer are not taxable.
SDCL 10-46-1(13) Use, the exercise of right or power over tangible personal property incidental to the ownership of that property, except that it does not include the sale of that property in the regular course of business. Use also includes the use of the types of services, the gross receipts from the sale of which are to be included in the measure of the tax imposed by chapter 10-45, and any amendments thereto and the delivery or causing delivery into this state of tangible personal property intended to advertise products or services or promote or facilitate sales to South Dakota residents.
[¶ 28.] Western counters asserting that the use tax law contains an inherent limitation requiring the use of the billing services to occur in the State of South Dakota. Western also argues that the billing services and the statements produced constitute personal property and not services for tax purposes. On these facts, Western argues that there is an insufficient nexus between the cost of producing the billing statements and the State of South Dakota to justify use tax. Both parties assert that prior use tax decisions of this Court are dispositive.
[IT 29.] In Thermoset Plastics, Inc. v. Department of Revenue, 473 N.W.2d 136 (S.D.1991), this Court addressed a use tax assessment for services provided by an out-of-state accounting firm to a South Dakota corporation. Prior to commencing operations in South Dakota, Thermoset incurred $8,000 in fees for the preparation of a cash flow statement by the Arthur Anderson accounting firm in Phoenix, Arizona. In holding that the cash flow statement was subject to use tax in South Dakota, the Court stated:
Thermoset’s transaction with Arthur Anderson is subject to tax under SDCL 10-46-2.1. Although some of Arthur Anderson’s services may have become obsolete when the designs of various plates were changed, some of the machinery included in the study is still being used in South Dakota. Further even if these plate designs are obsolete now, they were not obsolete at the time the services were rendered. Thermoset used these accounting services in South *81Dakota to conduct its business and is therefore subject to use tax on these services.
Id. at 139.
[¶ 30.] In that case, the record revealed that items of equipment examined in the cash flow statement were a product line being used in South Dakota. Therefore, there was a link between the out-of-state service and the sale of products with a resulting use in South Dakota by Thermo-set. Department therefore claims that because billing services are a necessary part of Western’s business in South Dakota this rationale is applicable to support a use tax on the cost of those services provided outside South Dakota.
[¶ 31.] To the contrary, Western relies upon our decision in Modern Merchandising, Inc. v. Department, 397 N.W.2d 470 (S.D.1986), to assert the inapplicability of the use tax. In Modern Merchandising, this Court reversed the imposition of use tax for the cost of catalogs and flyers mailed to South Dakota residents by LaBelle’s Corporation. LaBelle’s retailed consumer goods by mail order and through stores located in Minnesota, North Dakota and South Dakota. The materials were printed in Minnesota and delivered to South Dakota by mail or through a common carrier by out-of-state printers contracted by LaBelle’s to provide these flyers and catalogs. LaBelle’s only involvement was providing the South Dakota addresses of where the literature was to be delivered. Id. The issue on appeal was whether “LaBelle’s had sufficient right or power incidental to the ownership of the catalogs and flyers once in South Dakota to qualify as a use in this State under SDCL 10-46-1(2) and 2.”
[¶ 32.] In Modem Merchandising, Department argued that Labelle’s used “the flyers and catalogs to generate sales in South Dakota and to operate its catalog business” to justify imposition of the use tax. Id. at 471. Rejecting this argument, the Court recognized that LaBelle’s had no in-state contract for these services and all control over the flyers and catalogs in South Dakota vested in either the post office or item recipients. (“Department concentrated more on the material’s generation of in-state sales for LaBelle’s than on whether LaBelle’s activities fit the language of the tax statutes.”) Furthermore, the Court rejected Department’s policy argument that use tax was applicable if by not imposing the tax our in-state retailers would be at a disadvantage when compared to out-of-state competitors and that if a local entity must pay a tax then so should the outside entity providing the same services. We have recognized “that not only was the use tax intended to raise money but it was also intended to help the retailers in this state, who are subject to the sales tax, compete on an equal footing with out-of-state competitors.” Northwestern Nat’l Bank of Sioux Falls v. Gillis, 82 S.D. 457, 467, 148 N.W.2d 293, 298 (1967). We must remember, however, that despite the legislative intent, this Court cannot rewrite a taxing statute based on arguments of a competitive disadvantage that purportedly occurs as a result of the statutory framework or a perceived unfairness. The Court in Modem Merchandising observed: ‘While we agree with Department’s interpretation of our legislature’s intent, we cannot apply the statute to activity which is plainly alien to its language. We must honor the rule that statutes imposing a tax are to be construed liberally in favor of the taxpayer.” Modem Merchandising, supra at 472. Though Department’s concerns may have been valid, “this contention is more appropriately directed to the legislature.”
[¶ 33.] Following the decision in Modem Merchandising, the legislature altered *82the definition of “use” to state that “the delivery or causing delivery into this state of tangible personal property intended to advertise products or services or promote or facilitate sales to South Dakota residents” constitutes a “use” within the meaning of the legislative framework, (emphasis added). 1987 SD Sess.L. ch. 108, § 1. This change is now codified at SDCL 10-46-1(13). While the Modem Merchandising holding has thus been abrogated by the legislature, the holding’s reasoning is still valid: Department cannot exceed its statutory grant of authority.
[¶34.] The majority opinion’s flaw is best demonstrated by comparing this situation to another case where use tax was found to be proper, Quotron Systems, Inc. v. Limbach, 62 Ohio St.3d 447, 584 N.E.2d 658 (1992). In Quotron, the Ohio Supreme Court determined that use tax was appropriately imposed on a computer service that provided access to computer equipment enabling subscribers in Ohio to examine or acquire data stored by that system out of state. Id. at 659. However, the relevant Ohio taxing authority specifically imposed tax upon automatic data processing and computer services. Id. Furthermore, the Ohio court quotes the following from the Ohio legislative pronouncements:
R.C. 5739.01 defined automatic data processing and computer services, until January 10, 1985, to include “providing direct access to computer equipment by remote or proximate access for the purpose of processing data or examining or acquiring data stored in or accessible to such computer equipment,” and after this date, to include “providing access to computer equipment for the purpose of processing data or examining or acquiring data stored in or accessible to such computer equipment.”
Consequently, the Ohio court determined the taxing statutes applied to the data processing services and that use tax was properly imposed. Id. In comparing that taxing authority with the statutes relied upon by Department the Ohio statutory authorization for imposing the use tax on data processing and computer services is clearly more sophisticated and direct than that relied upon by the Department here. This is fatal to Department’s argument. The statutory authorization for collection of use tax is to be construed liberally in favor of the taxpayer, however, the majority opinion misconstrues the taxing authority liberally in favor of the Department.
[¶ 35.] Under our system the predicate for use tax under SDCL HM6-2.1 is “using services in South Dakota” that are non-exempt. Western has contracted for billing services with an out-of-state third party. Western itself does not generate, print or mail the bills to South Dakota residents. When the bills arrive in South Dakota they are controlled by the United States mail or the customers receiving the bills. While Western’s bills serve the purpose of providing its customers with information concerning their account, the billing services do not themselves generate sales. There are no facts establishing that these billing statements contain advertising materials or information to facilitate sales as part of the billing service. In this situation, the sale of cellular service is already complete when the billing statements arrive to the South Dakota customer. A billing statement for services previously rendered clearly is not something delivered “to advertise products or services or promote or facilitate sales.” Comparing the billing services with the catalogs and flyers at issue in Modem Merchandising and the accounting services in Thermoset, the billing services more closely resemble the catalogs and flyers in Modem Merchandising.
*83ll 36.] The circuit court attempted to distinguish the Modem Merchandising, holding by asserting its result was controlled by SDCL 10-46-2 and not SDCL 10-46-2.1, upon which Department now relies. However, both statutory provisions are governed by the definition of “use” provided in SDCL 10-^6 — 1(13). The circuit court determined that “although each individual component of that billing service was produced in other states, the completed billing service was acquired for ‘use’ in South Dakota to bill [Western’s] South Dakota customers and to conduct [Western’s] South Dakota cellular telephone business.” While Department urged, and the circuit court found, the billing services as a whole constituted a “use” in South Dakota, this expansive view of Department’s taxing authority is contrary to the dictate that we narrowly construe the taxing authority. Clearly, the circuit court characterized the “complete billing service” as a taxable event because the bills inevitably entered the state through the mail and arrived where Western directed. However, this is contrary to the rationale set forth in Modem Merchandising, which determined the use tax did not apply in such limited circumstances. See Modern Merchandising, 397 N.W.2d at 472.
[¶ 37.] When viewing the billing process as a whole, the facts do not establish a “use” in the state to support taxation. While it cannot be disputed that the South Dakota bills are a product of Western’s business in South Dakota, that is not the test to determine if the billing services are “used” within South Dakota to support the tax. The legislative change to the definition of “use” does not apply in this situation. It is significant that the legislature chose to exclusively incorporate advertising materials to promote or facilitate sales that are sent to the State as part of the definition of “use.” Though the result in Modem Merchandising has been altered by legislative action, the analytical method remains intact. The legislative modification to the definition of use does not apply and the rationale of Modem Merchandising is controlling. Applying these facts to the rationale of Modem Merchandising, and even considering the legislative change, the record does not establish the billing services were “used” in the State of South Dakota within the definition of the term as it now exists.
[¶ 38.] Therefore, I dissent.
[¶ 39.] AMUNDSON, Retired Justice, joins this dissent.