(dissenting ) — The majority finds unconstitutional the proviso in RCW 82.04.270 which exempts some retailers performing wholesale-type functions (distributors) *192from paying a business and occupation (B&O) tax on goods purchased from a wholesaler who has already paid the tax. This conclusion stems from the majority's erroneous assumption that the Legislature intended to treat distributors and wholesalers under the statute as members of the same taxpaying class.
I would find the Legislature intended to establish two classes of taxpayers under RCW 82.04.270.1 would also find that a reasonable basis for distinguishing wholesalers and distributors does exist, that the classifications themselves are rationally related to the purpose of the statute, and that the statute is constitutional.
Plaintiff Associated Grocers, Inc. (Associated) is a Washington corporation engaged in the business of selling grocery items at wholesale. It makes a majority of its sales to shareholders who are retail grocery stores. Although Associated purchases its goods from a variety of sources, it sometimes purchases from other wholesalers who have previously paid a B&O tax on the items. Because Associated is in the wholesale business, it pays a wholesale business tax pursuant to RCW 82.04.270(1).
After nearly 30 years of paying the B&O tax under the statute, Associated brought the present suit against the State of Washington. It alleges RCW 82.04.270 is unconstitutional under article 1, section 12 of the Washington State Constitution and the equal protection clause of the fourteenth amendment to the United States Constitution. Associated seeks to recover the amount of the B&O tax it would have saved if the same exemption afforded certain distributors was also extended to wholesalers.
In January 1988, the trial court heard arguments on Associated's summary judgment motion as well as the State's cross motion. The trial court found the exemption in RCW 82.04.270 unconstitutional on the grounds it denied wholesalers equal protection of the law. Rather than strike the exemption from the statute, however, the court extended the exemption to apply equally to wholesalers who could prove they had purchased items from other *193wholesalers who had previously paid a B&O tax. This resulted in the trial court awarding Associated a tax refund in the amount of $9,938,529, plus interest. The State subsequently appealed to this court.
At the outset, it must be emphasized that the party challenging the classification has the heavy burden of overcoming the presumption of a statute's constitutionality. Yakima Cy. Deputy Sheriffs Ass'n v. Board of Comm'rs, 92 Wn.2d 831, 835, 601 P.2d 936 (1979), appeal dismissed, 446 U.S. 979 (1980). I believe Associated has failed to meet this burden.
The best indication that the Legislature intended to create two classes of taxpayers under the statute is found in the lengthy history of amendments to the statute. In 1935, the original version of the statute was enacted for the purpose of levying a tax on retailers performing functions similar to wholesalers. Laws of 1935, ch. 180, § 4, p. 709. The original version contained no limitations or provisos. In 1937, the Legislature increased the tax rate of distribution by amending the statute. Laws of 1937, ch. 227, § 1, p. 1138. In 1941, the statute was again amended by deleting language which levied the tax on retailers performing wholesale-like functions. Laws of 1941, ch. 178, § 1, p. 480. By removing the tax on retailers while maintaining the levy against wholesalers, the Legislature apparently intended to treat these business entities separately by taxing them differently. This disparate tax treatment remained in effect until 1955.
In 1955, the Legislature again amended the statute by reinstating the tax which had been repealed in 1941. This was done by imposing "a tax equal to the wholesaler's tax upon persons performing functions essentially comparable to those of a wholesaler, but not actually making sales". Laws of 1955, ch. 389, § 47, p. 1671. By levying a tax equal to the tax imposed on wholesalers, as opposed to levying the same tax, the Legislature appears to have intended to distinguish wholesalers as one class of taxpayers and distributors as another. In 1959, the statute was again *194amended. Laws of 1959, 1st Ex. Sess., ch. 5, § 3, p. 1666. This time, the Legislature went one step further in treating the two classes separately by levying one tax on wholesalers under subsection (1) and then levying a "tax equal to the wholesaler's tax" on qualifying distributors under subsection (2). Subsection (2) also included the following proviso:
Provided, That persons engaged in the activities described in this subsection shall not be liable for the tax imposed if by proper invoice it can be shown that they have purchased such property from a wholesaler who has paid a business and occupation tax to the state upon the same articles. This proviso shall not apply to purchases from manufacturers as defined in RCW 82.04.110.
From a historical perspective, the amendments to the statute are indicative of the Legislature's intent to treat wholesalers and distributors as two separate classes of taxpayers. In fact, the 1959 amendment, which placed wholesalers under subsection (1) and distributors under subsection (2), is the best indication of the intent to treat these two classes of taxpayers separately. For those who may believe the issue to be arguable it should be pointed out that there is a strong presumption a revenue statute is constitutional, and, where there is doubt, the issue will be resolved in favor of constitutionality. Gruen v. State Tax Comm'n, 35 Wn.2d 1, 6, 211 P.2d 651 (1949).
The majority cites Benjamin Franklin Thrift Stores, Inc. v. Henneford., 187 Wash. 472, 60 P.2d 86 (1936) and Air-Mac, Inc. v. State, 78 Wn.2d 319, 474 P.2d 261 (1970) for the proposition that n[t]his court has consistently treated distributors and wholesalers as members of a single class under the statute and its forerunners." Majority, at 187-88. From this the majority would apparently infer that the court does not recognize a distinction between wholesalers and distributors. This would be inaccurate and unwarranted. The issue in both those cases was not whether the Legislature could make the distinction between distributors and wholesalers nor was that issue ever in question. Rather, both cases concerned the particular classification in which the taxpayer should be placed by the taxing authority.
*195If, as I believe has been demonstrated, the legislative intent was to create two separate classes of taxpayers, the next issue becomes whether there is some basis for reasonably distinguishing between those within and without the designated class. Yakima Cy. Deputy Sheriffs Ass'n v. Board of Comm'rs, supra at 835-36. In the context of this case, the question is whether the Legislature acted reasonably in separating wholesalers and distributors into separate classes of taxpayers.
As the State rightfully points out in its brief, legislative bodies have very broad powers to create classifications in the development of legislation. Sonitrol Northwest, Inc. v. Seattle, 84 Wn.2d 588, 590, 528 P.2d 474 (1974). The test for purposes of classification is whether '"any state of facts reasonably can be conceived that would sustain the classification.'" Sonitrol, at 590 (quoting Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522, 528, 3 L. Ed. 2d 480, 79 S. Ct. 437 (1959)). Furthermore, the Legislature has even broader discretion and greater power in making classifications for taxation than it has for regulation. Sonitrol, at 591 (citing Texas Co. v. Cohn, 8 Wn.2d 360, 376, 112 P.2d 522 (1941)).
The most obvious difference between wholesalers and retailers who perform wholesale functions is best described in the words of the trial court itself:
In this case the classes distinguish between businesses which are solely involved with sales at wholesale from businesses which perform wholesaling functions but do not ever sell at wholesale. AG [Associated Grocers] has no retail stores. Safeway operates numerous retail stores. AG pays no B&O tax on retail sales. Safeway pays B&O tax on retail sales. In summary, there are numerous and real distinctions between AG and Safeway which arguably meet the rational basis test.
Clerk's Papers, at 93.
The point made by the trial court is that there are real differences between the method of business employed by wholesalers and retailers. A different method of business has already been recognized as grounds for distinguishing taxpayers. United Parcel Serv., Inc. v. Department of Rev., *196102 Wn.2d 355, 368, 687 P.2d 186 (1984). Therefore, a reasonable basis exists for the Legislature's decision to separate the taxpayers here into two classes.
If a reasonable basis for the distinction is found, the question then becomes whether the classifications are rationally related to the purposes of the statute. Yakima Cy. Deputy Sheriffs Ass'n v. Board of Comm'rs, supra at 835-36. Here, the challenger must show conclusively that the classification is contrary to the legislation's purpose. Yakima, at 836.
In Air-Mac, Inc. v. State, supra at 326, the court explained that the purpose of RCW 82.04.270(2) was to "neutralize the tax advantage of a horizontal merchandising scheme used to eliminate the normal vertical wholesaling functions. ” In Foremost Dairies, Inc. v. State Tax Comm'n, 75 Wn.2d 758, 453 P.2d 870 (1969), this court articulated the Legislature's purpose in enacting RCW 82.04.270 as follows:
It was the obvious intent of the legislature to tax as a "wholesaling function" the horizontal merchandising scheme which competes with and, except for change of title to goods, is essentially similar to the typical vertical division of merchandising whereby goods are sold by manufacturers/processors to a jobber/wholesaler and on to the retailer for sale to the ultimate consumer.
Foremost, at 761.
These two cases assist in clarifying the basic purpose underlying the statute which is to attempt to equalize the disparate tax burden which exists by virtue of the differing internal structures between wholesalers and distributors who perform wholesale-like functions. The legislative history previously recounted also supports this interpretation of the purpose.
Furthermore, classifying wholesalers separately from distributors under the statute is rationally related to addressing the problem of equalizing the tax structures of these two types of businesses. Unless the Legislature is able to tax one class of taxpayers differently from the other, it will *197remain powerless to try and halt inequitable tax treatment. The majority completely fails to appreciate this point.
The Legislature in RCW 82.04.270 addressed a particular aspect of competition at the retail level. It may well be there are inadequacies within the statute and that further legislative action would be appropriate. It is not required, however, that for a statute to be constitutional it must solve all the problems which may be present. As has been well stated by the Supreme Court, a legislature '"may implement [its] program step by step, . . . adopting regulations that only partially ameliorate a perceived evil and deferring complete elimination of the evil to future regulations."' Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 466, 66 L. Ed. 2d 659, 101 S. Ct. 715 (1981) (quoting New Orleans v. Dukes, 427 U.S. 297, 303, 49 L. Ed. 2d 511, 96 S. Ct. 2513 (1976)). Any inequalities within tax structures established by the Legislature are best examined and remedied by the Legislature rather than the courts. Texas Co. v. Cohn, supra at 385 (citing Magnano Co. v. Hamilton, 292 U.S. 40, 78 L. Ed. 1109, 54 S. Ct. 599 (1934)).
I would hold the taxpayer has not met its burden of proof and that the statute is constitutional. The case should be remanded to the trial court for entry of summary judgment in favor of the defendant.
Utter and Brachtenbach, JJ., concur with Dolliver, J.
Reconsideration denied May 17, 1990.