concurring in result.
I concur in the result reached by the principal opinion. Unlike the principal opinion, however, I do not believe that resolution of the issue in this case is found in the mere application of In re Swift, 727 S.W.2d 880 (Mo.banc 1987). Instead, this is a case of first impression, raising an issue not addressed in Swift.
The Director of Revenue claims the authority to tax the entire income of a testamentary trust created under the will of Curtis B. Rollins, Jr., a domiciliary of Boone County, Missouri, at the time of his death. During the tax years in question, the trust held assets that included an undivided one-half interest in a parcel of real property located in Columbia, Missouri. That property produced rental income of $3,641 for each of the tax years in question. The trust had no other contact with Missouri; its trustee, beneficiaries, and other trust property all resided outside this State.
Swift turns on different facts, holding that where a trust’s sole nexus with Missouri is that the “trust [was] created by will of a decedent who at his death was domiciled in this state,” Section 143.331(2), RSMo 1986 — Missouri may not tax trust income. In this case, there is an additional connecting point with Missouri. The question thus becomes whether the due process clause permits Missouri to tax all of the income of the trust when only a portion of that income is earned in Missouri.
The trustee argues that due process prevents the taxation of the total income of this trust by Missouri. On the record before us, I cannot agree.
The Federal Constitution “leaves the states unrestricted in their power to tax those domiciled within them, so long as the tax imposed is upon property within the state or on privileges enjoyed there, and is not so palpably arbitrary or unreasonable as to infringe the Fourteenth Amendment.” Lawrence v. State Tax Comm’n, 286 U.S. 276, 280, 52 S.Ct. 556, 557, 76 L.Ed. 1102 (1932). A state’s power to tax does not extend unbridled outside its borders. The power to tax income outside the state is limited by the need to show a fiscal relationship between the tax levied and the protections offered by the state. The “test is whether ... the taxing power exerted by the state bears fiscal relation to protection, opportunities and benefits given by the state.” Wisconsin v. J.C. Penney Co., 311 U.S. 435, 444, 61 S.Ct. 246, 249, 85 L.Ed. 267 (1940).
A state income tax becomes unreasonable or arbitrary in violation of the Fourteenth Amendment when the tax applies to extraterritorial income without some effort to apportion the tax levied to the benefits, opportunities and protections provided by the state. Beyond the obvious interstate commerce considerations, I see little distinction between the limitations imposed by the commerce clause and the due process clause, in this regard.1 Thus, I would measure the tax imposed under Sections 143.-331, et seq., against a standard that asks (1) whether Missouri has a substantial nexus with the property taxed and (2) whether the tax is fairly apportioned in relation to the opportunities, protections and benefits provided by the state.2
That there is a nexus with Missouri in this case is beyond serious argument. In addition to the presence of the property itself, Missouri provides protections to the trust property in this state. The trustee concedes this point.
In my view, that does not end the inquiry however. The tax imposed must also bear some “fiscal relation” to the protection offered; there must be some attempt fairly to apportion the tax levied to the benefit provided. In my view, the constitution permits Missouri to presume that its protections, benefits, and opportunities are of *516paramount importance — and to tax income without apportionment — (1) where a trust draws its life and breath under Missouri’s laws, (2) where, as here, some income producing trust property remains in Missouri and (3) where there is no showing on the record that a sister state claims the right to tax the income of the trust because of the protections, opportunities and benefits that sister state provides. While Section 143.-331 makes no provision for apportionment in the event of a sister state’s claim, Section 144.361, RSMo 1986, requires Missouri to credit the trust with income taxes imposed against its income by other states. This latter statute provides all the apportionment required by due process.
The trustee in this case makes no claim that a state other than Missouri has taxed or attempted to tax any of the income of the trust. On the record of this case, I believe the income tax imposed by Missouri is constitutional as it bears a reasonable fiscal relation to the protections, benefits and opportunities afforded the entire trust by this state.
. In Luhr Brothers, Inc. v. Director of Revenue, 780 S.W.2d 55, 57 (Mo. banc 1989), this Court discussed the state's power to tax as limited by the due process and commerce clauses. "Generally the due process and commerce clauses prohibit the state from imposing an income-based tax on value earned outside their borders; states may tax the income from interstate operations, however, if the states provide a fair apportionment formula.”
. This is essentially the test provided in Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 97 S,Ct. 1076, 51 L.Ed.2d 326 (1977), without the commerce clause considerations.