In Re the Tax Appeal of Heftel Broadcasting Honolulu, Inc.

CONCURRING OPINION OF

KIDWELL, J.

I concur in the judgment on this appeal, although I do not agree with everything that is said in the majority opinion. The tax imposed by HRS § 237-13(10) falls only upon persons who engage or continue within the State in a “business, trade, activity, occupation or calling. ” The consummation of a ren*186tal or licensing transaction, by the delivery into the possession of the renter or licensee of the subject matter of the transaction, if such delivery takes place within the State, is sufficient activity to render taxable the income from the transaction. Boswell v. Paramount Television Sales, Inc., 291 Ala. 490, 282 So.2d 892 (Ala. 1973), correctly so holds. As the majority opinion points out, a privilege tax wholly on such an activity within the State raises no significant due process or commerce clause problems. Despite some evasive language, the typical agreement before us in this case imposes on the licensor the obligation and risk of placing the films in the hands of the licensee in Hawaii. I view this as sufficient to sustain the tax and consider it unnecessary to take up the question whether the mere owning and renting of film prints and their telecast rights, without the activity in the State of such delivery, would fall within HRS § 237-13(10). Cf. James v. United Artists Corp., 305 U.S. 410 (1939).