dissenting.
In this case the Department of Revenue seeks to hold appellant liable for sales taxes incurred before he purchased the property in question in April 1980. The Department bases its claim on two alternative theories. It first claims that appellant purchased the property and business directly from the Manor Inn, Inc., or The Manor Inn Limited Partnership, both of which were controlled by J. Douglas Cassity. Alternatively, the Department argues that even if appellant did purchase the property and business from Great Southern Savings and Loan Association after the latter had acquired the property at a foreclosure sale, appellant remains liable because he is a “successor” for purposes of § 144.150, RSMo 1978. The principal opinion appears to hold for respondent on either or both theories. I do not believe either the facts of the case or the applicable law justifies this result. I respectfully dissent.
Understanding the transactions in this case requires a more detailed statement of the facts than that provided by the principal opinion. The sales taxes in dispute arose from the operation of the Manor Inn, a motel/restaurant complex in Rolla, Missouri. In 1970, Jack and Virginia Rogers executed and delivered to the Carney fami*279ly a promissory note for $660,062.69, secured by a first deed of trust on the property. The property in question was later conveyed to the Manor Inn, Inc. in August 1973 subject to the first deed of trust.
In June 1978, with the Carney note in default and foreclosure imminent, the Man- or Inn, Inc. executed an agreement with the Carney family whereby the corporation agreed to pay the balance of the note no later than August 1, 1979. Seven months later, in February 1979, the Manor Inn, Inc. executed and delivered to Great Southern a promissory note for $791,395, secured by second deed of trust on the property. This transaction appeared to be for the purpose of funding the prior agreement with the Carney family. In any event, when the balance of the Carney note came due in August 1979, Manor Inn, Inc. again defaulted and the foreclosure commenced.
The property was sold at auction on October 3, 1979 to Great Southern for $902,-000. The trustee delivered to Great Southern a deed conveying title to the real property upon the latter’s payment of the purchase price.
The trustee prepared checks for disbursement of the fund as follows:
Carney balance on note $ 541,870.66
Foreclosure Costs 289.43
Attorney’s Fee 54,187.01
Trustee’s Fee 4,545.00
Balance to Great Southern 301,107.90
Total $ 902,000.00
Cassity, on behalf of Manor Inn, Inc. and Manor Inn Limited Partnership, submitted to the trustee certain objections relating to the manner in which the sale was conducted. Great Southern objected to the amount of the attorney fee allowed to the attorney for the trustee. As a result of these objections, the trustee filed a declaratory judgment in the circuit court and tendered the proceeds of the sale (the checks) into the registry of the court. Named as defendants in the suit were Manor Inn, Inc. Man- or Inn Limited Partnership, Great Southern and members of the Carney family. Manor Inn, Inc. and Manor Inn Limited Partnership filed a counterclaim against the trustee and cross-claims against the other defendants.
In early March 1980, a real estate agency in Springfield, Missouri contacted appellant regarding the property which they said Great Southern was interested in selling if the pending suit could be settled. There is no evidence that in the negotiations which followed either Great Southern or appellant entertained any notion that either Cassity or his companies retained any interest in the property. Appellant neither met with nor spoke to Cassity or his agents during the sale negotiations.
In late March or April 1980, Great Southern and appellant reached tentative agreement. Great Southern’s attorney prepared all of the closing instruments and arranged the dismissal of the pending declaratory judgment action. Appellant at no time was represented by counsel. Appellant (and wife) signed and delivered to Great Southern a promissory note for $975,000. Great Southern delivered to appellant a quit claim deed to the real estate and a quit claim bill of sale for the personal property.1 Appropriate instruments were executed for appellant to take over leases of dormitories leased from the University of Missouri, Rolla. Great Southern’s attorney prepared a quit claim deed and a quit claim bill of sale to be signed by Cassity on behalf of Manor Inn, Inc. and Manor Inn Limited Partnership in order to assure appellant that they could not later assert against appellant claims similar to those alleged by them in the declaratory judgment action to which appellant was not a party. Appellant gave Cassity the pick of some gems that appellant valued at about $3,000 as *280consideration for signing the quit claim instruments. Appellant was the only witness testifying in the proceeding and there is no evidence that he purchased any business from Cassity, the Manor Inn Inc. or Manor Inn Limited Partnership.
The respondent Director of Revenue relies on Section 144.150, RSMo 1978, which provides in relevant part as follows:
All successors, if any, shall be required to withhold sufficient of the purchase money to cover the amount of such taxes and interest or penalties due and unpaid until such time as the former owner or predecessor, whether immediate or not, shall produce a receipt from the director of revenue showing that they have been paid, or a certificate stating that no taxes are due. If the purchaser of a business or stock of goods shall fail to withhold the purchase money as above provided, he shall be personally liable for the payment of the taxes, interest and penalties accrued and unpaid on account of the operation of the business by the former owner and person.
There is no question that this statute gives to the Department of Revenue protection as to unpaid taxes similar to the protection afforded creditors and suppliers by the Missouri Bulk Sales Law, Chapter 400.6, RSMo 1978. Nor is there any question but that one buying a business, as such, should require compliance with both the Bulk Sales Law and this sales tax section and withhold from the purchase price such sums necessary to cover these liabilities. The statute, however, creates no lien of record which the purchaser at a foreclosure sale could find by search of the record. Nothing in the statute gives the Director a priority over any other creditor at a foreclosure proceeding. In fact any lien of record has a priority over the Director of Revenue’s claim for unpaid sales tax.
Thé practical effect of today’s decision is that purchasers at foreclosure sales are made liable for unpaid sales tax liability of the person conducting a business in the premises prior to the foreclosure. Most purchasers at foreclosure sales are financial institutions that have loaned the money secured by the property and who must bid on the property in order to protect their interest. If the principal opinion is permitted to stand, sales tax liability will have priority over all other recorded security instruments. The principal opinion in effect reads into the statute a lien priority which does not appear in the statute and which totally disregards our existing law of property, secured transactions and recording. Nothing could have a more chilling effect on the Missouri businessman’s ability to borrow money for the conduct of his business.
There was only one witness who testified — the appellant. He denied the purchase of anything from Cassity, Manor Inn, Inc. or Manor Inn Limited Partnership, other than the release of their claims which had been asserted in the declaratory judgment action. This was accomplished by execution of the quit claim deed and quit claim bill of sale prepared by Great Southern’s attorney. It is also of some interest to note that all that is required by § 144.-150 is that a successor purchaser shall “withhold sufficient of the purchase money to cover the taxes and interest and penalties due and unpaid ...” (emphasis added). If, as suggested by the principal opinion, the alleged $3,000 of gems was a direct purchase price to Cassity for the business, I am at a loss to know how $17,-289.03 in unpaid tax liability could be withheld therefrom. If the principal opinion is the judgment of our Court, do we not deny appellant due process of law if we require him to do more than pay to the Director of Revenue an equivalent $3,000 of gems, by himself to be appraised. The statute by its terms requires nothing more.
There can be no dispute that from and after the foreclosure sale Cassity, his corporation and his limited partnership had no remaining business to sell. The principal opinion seeks to justify its result by saying:
In addition the loan agreement between Bates and Great Southern states that the appellant ‘contracted with’ Cassity for *281the sale of the Manor Inn business property. Thus it can be said the record permits our conclusion that appellant purchased from and is a successor to Cassity, and provides sufficient competent evidence to support the Commission’s determination that appellant was a successor with in the meaning of the statute.
Ante at 276.
The loan agreement prepared by Great Southern, respondent’s Exhibit 9, does state in the first “whereas” paragraph:
WHEREAS, Borrower has contracted for the purchase from The Manor Inn, Inc. and The Manor Inn Limited Partnership of a tract of land and improvements thereon known as The Manor Inn in Phelps County, Missouri, being a motel and convention complex, including a water slide, lounges, and other various and sundry improvements;
The loan agreement continues, paragraph 4 and following:
4. Although Borrower shall execute a Nine Hundred Seventy Five Thousand and no/100 Dollar ($975,000.00) note, it is understood that Borrower is receiving a quit claim conveyance from the Association and that the promissory note represents purchase money paid by the Borrower to the Association for the conveyance and transfer being made by the Association to the Borrower. No actual disbursements of money shall be made by the Association to the Borrower in consideration of receipt of the note.
5. The Association previously made a loan to The Manor Inn, Inc. and acquired an ownership in the property by virtue of a foreclosure of a prior and senior deed of trust to the one held by Great Southern. Since that time the Association has been involved in litigation in Phelps County, Missouri and has entered into a tentative settlement of the pending litigation and as a part of the settlement and resolution of the questions involved in the litigation, Borrower has obtained a quit claim deed of the interest of The Manor Inn and Manor Inn Limited Partnership in the property....
(Emphasis added.) The sentence relied on by the principal opinion, written by Great Southern’s attorney, is neither binding on appellant nor is it sufficient competent evidence to support the Commissioner’s determination that appellant was a successor purchaser of the business within the meaning of the statute. The entire loan agreement together with the testimony of appellant, is conclusive evidence that appellant is not a successor purchaser of the business from Manor Inn, Inc., Manor Inn Limited Partnership or Cassity, but rather that he purchased the business from Great Southern, the purchaser at the prior foreclosure sale. The Court does great harm to the law of secured transactions by in effect holding that the purchaser at a foreclosure sale can be held liable for delinquent sales tax owed by a prior occupant of the premises.
The holding of the Administrative Hearing Commission should be reversed.
. The Director of Revenue presented no evidence as to how Great Southern acquired the personal property and fixtures. Based on business experience we can only assume that there were security instruments and financing statements which were foreclosed simultaneously with the deed of trust foreclosure. This void of evidence alone constitutes a complete failure of proof on the part of the Director of Revenue as to his theory of “successor” in title to the business.