dissenting: I disagree with the majority’s holding that preprinted advertising supplements are an integral and component part of a newspaper. It discriminates against advertisers who have their advertising supplements printed in Kansas and distributed by a newspaper over those who use out-of-state *401printers. The Kansas printers must collect Kansas sales tax while the out-of-state printers do not.
As noted by the majority, there is a clear division of authority with respect to the issue of whether preprinted advertising supplements are a component part of the newspaper, and therefore exempt from sales and use tax. A number of jurisdictions have held that advertising supplements do not fall within the newspaper exemption from sales or use tax. See, e.g., K-Mart Corp. v. S. D. Dept. of Revenue, 345 N.W.2d 55 (S.D. 1984); Department of Revenue v. J.C. Penney Co., 108 Wis. 2d 662, 323 N.W.2d 168 (Ct. App. 1982); Caldor, Inc. v. Heffernan, 183 Conn. 566, 440 A.2d 767 (1981); Ragland, Comm’r v. K-Mart Corp., 274 Ark. 297, 624 S.W.2d 430 (1981). Other jurisdictions have determined that advertising supplements are an integral part of a newspaper and thus are entitled to an exemption from sales or use tax. See, e.g., Eagerton v. Dixie Color Printing Corp., 421 So. 2d 1251 (Ala. 1982); Sears, Roebuck & Co. v. State Tax Commission, 370 Mass. 127, 345 N.E.2d 893 (1976); Daily Record Co. v. James, 629 S.W.2d 348 (Mo. 1982). See generally Annot., 25 A.L.R. 4th 750.
The majority adopts the reasoning of the Alabama Supreme Court in Eagerton, without fully considering what I believe to be the better reasoned analysis of those jurisdictions which have held advertising supplements not exempt from sales and use taxes.
In Ragland, Comm’r v. K-Mart Corp., 274 Ark. 297, a case with closely analogous facts to those of the instant case, the Arkansas Supreme Court held that preprinted advertising supplements which were printed by an out-of-state printer and delivered to in-state newspapers by K-Mart for distribution with the newspapers were not a component part of the newspapers and were not exempt from the use tax as being “newspapers.” The Court considered a number of factors in determining whether preprinted advertising supplements are a component part of a newspaper. Those factors were adopted and summarized by the South Dakota Supreme Court in K Mart Corp. v. S. D. Dept. of Revenue, 345 N.W.2d at 57-58:
“ T. K Mart owned and thus controlled the supplements until delivery, while the newspaper was merely paid for distributing the supplements.
“ ‘2. The supplements were not prepared by the newspaper.
“ ‘3. The supplements were not a regular feature of a newspaper inasmuch as *402they did not appear- in each addition of a particular edition of a newspaper.
“ ‘4. Instead of paying for the insertion of the advertising supplement, the newspaper is paid for distributing the advertising supplements.
“ ‘5. Instead of bearing only the logo of a specific newspaper, the advertising supplements bear a logo which is preceded by the words “supplement to.”
“ ‘6. The advertising supplements are sometimes offered as free handouts at the stores in addition to being distributed within the newspaper.’ ”
Applying these factors, it is clear that advertising supplements do not constitute an integral and component part of a newspaper. Advertising supplements are unscheduled, unindexed, and are not a regular feature of the newspaper. The advertising supplements are not printed by the newspaper and no extra charge is made on the day they appear. A newspaper customer is not guaranteed a certain number of such supplements when he buys the paper. The purpose of placing such supplements in the paper is to obtain the least expensive method of distribution. Postage and hand delivery are more costly. Furthermore, the advertising supplements are delivered to customers in other ways and are often available at the retail store.
The majority relies on the case of Friedman's Express v. Mirror Transp. Co., 71 F. Supp. 991 (D.N.J. 1947), aff'd 169 F.2d 504 (3d Cir. 1948). There, the court determined that a comic section, which was printed in a separate plant and transported from the printer to the newspaper, was an integral part of the newspaper and had “assumed the character of the journal of which it is a part.”
The majority’s reliance on Friedman s Express for the proposition that an advertising supplement is an integral part of a newspaper is misplaced. In Caldor, Inc. v. Heffernan, 183 Conn. at 574-75, the Supreme Court of Connecticut clearly distinguished supplemental advertising preprints and comic sections:
“The preprint supplement is prepared by an entity totally independent of the publisher and is not made a part of the newspaper at short, regular intervals. It is inserted into the newspaper, not as an integral part designed to capture a regular audience, but rather to make use of the newspaper’s extensive distribution system. On the other hand, a comic section is inserted at short, regular intervals. It becomes an integral part of the newspaper, not because it is physically folded within any particular edition, but because it contributes to the character of the newspaper. The comic section commands its own regular and faithful following just as do the local and world news sections, the sport page, the editorial page, the letters to the editor, the obituaries, the advice columns, and the classified *403advertising section. People buy a newspaper because all these sections are regularly collected together under one mast head thereby attracting a substantial portion of the public and enhancing the appeal of the whole. An advertising supplement, inserted into the newspaper at irregular intervals, is not like a member of the family of sections making up the newspaper, but is more similar to the occasional house guest.”
This difference was also discussed in Department of Revenue v. J.C. Penney Co., 108 Wisc. 2d at 671-72. There, the Wisconsin court, in addition to adopting the reasoning of Caldor and Rag-land, noted that since preprinted advertising supplements are not a regular feature of the newspaper, readers do not look forward to reading a particular merchandiser’s preprints at short, regular intervals. Thus, the court determined it could not be said that preprinted advertising supplements contributed to the character of the newspaper. 108 Wise. 2d at 672.
I would adopt the reasoning of those courts holding that preprinted advertising supplements are not an integral and component part of a newspaper and therefore do not qualify for the newspaper exemption from taxation. Such a holding would be in line with the well-settled principle that taxation is the rule and exemptions the exception. Exemption provisions are to be strictly construed against the party claiming the exemption and the burden of proof is on one claiming exemption from taxation. R. L. Polk & Co. v. Armold, 215 Kan. 653, 655, 527 P.2d 973 (1974).
This court cannot substitute its judgment for that of an administrative board and on appeal the court is restricted to considering whether, as a matter of law, (1) the tribunal acted fraudulently, arbitrarily or capriciously, (2) the administrative order is substantially supported by the evidence, and (3) the tribunal’s action was within the scope of authority. Hemry v. State Roard of Pharmacy, 232 Kan. 83, 652 P.2d 670 (1982). I contend the BOTA’s action is not supported by substantial competent evidence and is unreasonable.
I would reverse and hold K-Mart liable for use tax on its advertising.
Prager, J., joins the foregoing dissenting opinion.