(dissenting). I dissent. I would hold that for the tax period involved in this case the actual use in a Michigan business of income from intangible property located in another state does generate a Michigan taxable situs in the property. There should be a trial in this case to determine whether such use has been made.
The taxpayer primarily argues that the rule I would establish here is inconsistent with the business situs rule established in a series of United States Supreme Court cases. The Supreme Court’s rule has been summarized by one commentator as follows:
"[I]t is necessary under the 'integration doctrine,’ in order to authorize taxation, that the intangibles have become an integral part of some business activity, and that their possession and control be localized in some independent business or investment away from the owner’s domicil, so that their substantial use and value primarily attach to and become an asset of the outside business, or, in other words, that the local independent business controls and utilizes, in its own operation and maintenance, the intangible property and its income.” Anno: "Business situs” for purposes of property taxation of intangibles in state other than domicile of owner, 143 ALR 361, 368.
The main factors considered are a continuous course of business or series of transactions within the state where the property is physically located and independent management and control of the property. Id.
The leading authority for this so-called "integration” or "localization” doctrine is Wheeling Steel Corp v Fox, 298 US 193; 56 S Ct 773; 80 L Ed 1143 (1936). The rule substantially has been codified in this state by the intangibles tax act. The act provides that a Michigan tax situs in intangible *631personal property is estabished when the intangible is "placed in the hands of a manager or agent in Michigan to the extent that such intangible personal property is invested in a course of repeated transactions in obligations of persons residing in Michigan or secured by property located in Michigan”. MCL 205.131(c); MSA 7.556(l)(c) (amended 1975).
I agree that the situation contemplated to be within the integration rule is not the situation here. However, Michigan’s intangibles tax act, before its amendment in 1975, see 1975 PA 229, § (l)(c), contained a broader test for business situs. In addition to the above-quoted clause the statute, before its amendment, provided that a tax situs in this state is established whenever the intangible is "used in connection with the conduct of [the owner’s] business in Michigan”. MCL 205.131(c); MSA 7.556(l)(c). There was a proviso to allocate taxes on intangibles used in connection with the conduct of the owner’s business both within and outside this state. The "use in connection with business” test is of course applicable to the present case since the tax involved was collected for a period prior to the amendment’s effective date. In applying that test it is necessary to comprehend the many ways in which an intangible can be used in connection with the conduct of a business.
The majority’s restrictive definition of "use” of an intangible misconstrues the nature of such property. Intangible property by its nature has no "physical” use. As the state contends, income producing intangibles are capable of use only to the extent that their income or interest is used or to the extent that the proceeds from their sale or pledge as security are used. In other words, use of the intangible’s product is use of the intangible *632itself. The majority apparently would hold that if a corporation pledges or sells intangibles and sends the proceeds to its business operation in Michigan, it may be taxed on those intangibles; on the other hand, if the corporation holds on to the intangible and sends the income or interest to its Michigan subsidiary it can avoid the levy. Under the "use in connection with business” test I find these two situations indistinguishable. The test is broad enough to enable taxation of intangibles used in either manner.
The E F MacDonald Co v Dep’t of Treasury, 62 Mich App 626; 233 NW2d 678 (1975), is distinguishable from the present case. MacDonald narrowly held that the mere availability for use in this state of income from intangibles located elsewhere is insufficient to generate a Michigan tax situs in the property. The majority is persuaded that MacDonald did not intend a distinction between mere availability for use and actual use. I am persuaded that the former legislation did.
I would reverse the lower court’s summary judgment and remand for trial.