dissenting.
I respectfully dissent. Despite the holding of Mobil Oil Corporation v. Johnson, 93 Ill.2d 126, 66 Ill.Dec. 285, 442 N.E.2d 846 (1982), to the contrary, I do not agree that under North Dakota statutes the gas used by the plant processors in their operations is subject to the use or sales tax. In the first instance I would hold the transaction does not constitute a sale and, if I were to conclude it constituted a sale, I would nevertheless hold it was exempt under the “for processing or for resale” exclusion contained in the definition of “sale” in Section 57-39.2-01(7), N.D.C.C. The Tax Commissioner draws too fine a distinction between property which is intended to become a part of the property sold ultimately at retail and the use of the gas, under these circumstances, to produce that property. Thus I assume this holding will also apply in those situations in which gas produced with oil is used to fuel a production pump at the wellsite, as permitted by most leases, and that such gas will now be considered sold to the operator. Or, if it is held that the operator cannot purchase from itself, it will at least be considered a sale to the extent of the lessor’s royalty interest in the production. I do not believe that the tax statutes must be construed to tax everything and anything that is not nailed down if there is any conceivable construction which will support taxation.
I am also disturbed by the posture of this case. It was brought as a declaratory-judgment action. But we should not decide the legislative intent of these statutes in a *285vacuum. Although North Dakota has had refineries for many years and although the practice of using gas in the refining process has been followed for many years, we are given no history of the construction and interpretation of those statutes by the Tax Commissioner during those years. The applicable statutes are not new nor is the refining process. We do not know if the interpretation and application of the statutes by the Tax Commissioner to the process is new. Such information would have been helpful, at least to me, in deciding the issue at hand, for it would have given us an understanding of the intent of the Legislature in enacting the applicable statutes. Thus in Mobil Oil Corporation v. Johnson, supra, Mobil argued that there was a change in the Department of Revenue’s policy regarding the taxability of the use of refinery fuels. But in that case the court referred to a rule adopted by the Department in 1969, which set forth the Department’s policy although the Department did not, in fact, tax the refinery fuels under that rule. The Illinois court further noted that the rule was consistent with earlier holdings of the court. No such contention is made in this case.
Unless there is a reasonable explanation for an abrupt change in interpretation of applicable statutes, changes in taxation policies are more properly matters for legislative determination than for the philosophy of the Tax Commissioner.