On Application for Rehearing
SIMPSON, Justice.Appellee urges on application for rehearing that as a result of our original opinion, supra, the Department of Revenue will have much difficulty in administering the statute dealt with, Code 1940, Tit. 51, '§ 786(2) (f) (h), and that the State will •suffer much loss of revenue. In sum, it “views with alarm” and argues that we have so interpreted the statute as that any tangible personal property bought at wholesale and withdrawn from stock and used hy the person so withdrawing same, to be ■subject to the tax, must be fully consumed. In this counsel for appellee are in error. In distinguishing the Kershaw case, 273 Ala. 215, 137 So.2d 740 from the case at har we observed that some of the machines in Kershaw were consumed in use ■or “junked”, and that in this' case there was no question of consumption through use. Moreover, here we pointed out that appellee’s theory was that any withdrawal, however short the time, gave rise to the sales tax. In this case we were dealing ■with the case presented upon its own peculiar facts. The evidence presented by appellant revealed an unusual course of dealing in its business — using newly purchased planes in rental service and subsequently selling the planes at the original sale price. Appellee here argues that it is contrary to normal business practice to demand and receive the original price for used personal property. But appellee offered no evidence countervailing appellee’s evidence as to this factor of its business.
The case was treated by us upon the theory and evidence presented by the parties. Our decision does not extend to situations different from that in the instant case as disclosed by the facts summarized by us in the opinion, supra.
To reiterate the substance of our conclusion : The statute was intended to reach transactions which could not be taxed otherwise. There is argument in appellee’s brief that “the property could lose value or be partially consumed in the use. The later sale of the property would result in sale at reduced value and the tax take would be less. The retailer if allowed to follow this procedure would be using and consuming in part merchandise on which no tax has been paid”.
The case, insofar as the State is concerned, was not tried upon the theory thus expressed. Its theory was, as we have said, that any rental or use gave rise to the tax for withdrawal and that a subsequent sale, no matter the price received nor how soon sold, warranted another tax. So far as appears, the planes were sold for their fixed or original price, and the State ultimately derived its full “tax take”. It follows that we cannot and should not here enter upon the solution of a hypothetical or probable case.
Opinion extended and application for rehearing overruled.
LIVINGSTON, C. J., and MERRILL and HARWOOD, JJ., concur. ■