dissenting.
I respectfully dissent.
Appellant is not a recalcitrant crank intent on avoiding a tax clearly owed, but rather a victim of the Department of Revenue’s inability to make a definitive ruling as to whether his river boat excursions were subject to or exempt from the Missouri state sales tax. He is a businessman with several business intersts and pays sales taxes on all of his other businesses. The Department initially informed appellant’s attorney in 1967 that the business was exempt. Nine years later the Department had a change of heart without benefit of change of law and conducted an audit and assessed appellant for taxes allegedly owed on receipts for a period from April 1, 1974 through March 31, 1976. Appellant’s attorney, a highly respected lawyer, a former state Senator, and now serving as a distinguished Circuit Judge in Jackson County, the Honorable Jack E. Gant, again contácted an official of the Department of Revenue who, when reminded of the prior action of the Department, expressed the view that the State had waived its right to the tax by its earlier ruling, but attached the caveat that verification from Jefferson City would be required.
The principal opinion stresses the fact that appellant “took no further action, nor did he appeal the 1974-76 assessment.” Far more significant I would suggest is the absence of evidence in the record that the Department ever made any further attempt to collect the allegedly assessed 1974-76 tax. The principal opinion continues: “Neither did he file tax returns or collect sales tax. This inaction was contrary to his counsel’s advice to prepare himself in order to avoid legal dispute, for it appeared that *51payment of sales tax would be sought.” Fairly stated, Jack Gant told his client to prepare himself for the Department’s continued efforts in trying to collect a tax, but there is not one line of testimony that attorney Gant ever suggested to appellant that he was legally obligated to collect or pay sales tax.
It was not until four years later that the Department again without benefit of change of law audited appellant’s books and assessed tax for the period of January 1, 1976 through December 31, 1979.
The Sales Tax Act provides its own Statute of Limitations, Section 144.220, RSMo 1978.1 It is a plain simple two year statute of limitations, except in cases of fraud. The record before us is totally devoid of evidence of fraud of any kind.
Neither the principal opinion’s reliance on Jack Gant’s suggestion that his client “should prepare himself” nor its conclusion that “because the taxpayer had received the earlier notice of assessment plus advice of counsel of possible tax collection action, it is not now good faith (for the taxpayer) to claim unawareness,” is proof of any type of fraud on the part of the appellant. The state has no claims to either tax or penalty for the years of 1976 and 1977 nor to a penalty for the years of 1978 and 1979.
This case is but another example of the Department’s imposition of tax by re-interpretation of existing tax laws.2 It is a classic example of bureaucratic bungling of the worst kind. Lora v. Director of Revenue, 618 S.W.2d 630 (1981), is not distinguishable from this case but rather mandates the aforementioned result.
On these facts, I also would reverse the case as to all taxes and penalties for 1976-79 and would deal with 1980 and following when and if required to do so. We can substantially improve the business climate of our state and the confidence of our taxpayers by leaving the imposition of taxes to the legislature.
. Now § 144.220, RSMo Cum.Supp.1984.
. See King v. Mound City Industries, Inc., 665 S.W.2d 935 (Mo. banc 1984); City of Springfield v. Director of Revenue, 659 S.W.2d 782 (Mo. banc 1983); Mid-American Television Co. v. State Tax Comm'n, 652 S.W.2d 674 (Mo. banc 1983); Cities Service Gas Co. v. Administrative Hearing Comm'n, 652 S.W.2d 684 (Mo. banc 1983); Bemis Company, Inc., v. Administrative Hearing Comm'n, 652 S.W.2d 685 (Mo. banc 1983); Wells Aluminum, Inc., v. Administrative Hearing Comm’n, 652 S.W.2d 687 (Mo. banc 1983); Banquet Foods Corp. v. Administrative Hearing Comm’n, 652 S.W.2d 689 (Mo. banc 1983); Langley v. Administrative Hearing Comm’n, 649 S.W.2d 216 (Mo. banc 1983); King v. Laclede Gas Co., 648 S.W.2d 113 (Mo. banc 1983); Central Cooling & Supply Co. v. Director of Revenue, 648 S.W.2d 546 (Mo.1982); Star Service & Petroleum Co. v. Administrative Hearing Comm’n, 623 S.W.2d 237 (Mo. banc 1981).