dissenting.
The principal opinion holds that bottles purchased by plaintiff bottlers are tangible personal property held by them “solely for resale in the regular course of business” and, hence, qualify under § 144.615(e),1 for exemption from the compensating use tax. On that basis the opinion holds that defendant is permanently enjoined from enforcing the provisions of the Revenue Department’s amended Rule 34 to the extent that it requires plaintiffs and members of the class represented by them to pay use tax on reusable bottles. I disagree with that holding and, hence, must respectfully dissent. I would hold amended Rule 34 to be valid.
Section 144.610 imposes a use tax “for the privilege of storing, using or consuming within this state any article of tangible personal property purchased on or after the effective date” of the act. That language clearly is broad enough to cover the bottles in question unless exempted under some other provision of the act. The principal opinion makes no contention that § 144.610 is not broad enough to apply to the bottles purchased by plaintiffs from outstate suppliers. Instead, it relies on § 144.615(6), a subsection of the exemption section, in holding that the bottles are not subject to tax. In testing the propriety of this conclusion, it must be kept in mind, as the principal opinion recognizes, that in construing tax exemptions, the statute is to be construed against the taxpayer.
In determining applicability of § 144.-615(6), the principal opinion limits itself to *69the question of whether the procedure utilized by plaintiffs results in a “sale” of the bottles in which plaintiffs place and sell their beverages. It emphasizes that “ * * * many elements of ownership pass from the bottler to his vendee with the conveyance and delivery of the bottles. The retailer who purchases from the bottler and in turn the ultimate consumer have dominion over the bottles they acquire. Each has ‘paid’ for the bottles by their ‘deposit’ and is free to keep or return them. If returned, they have a definite expectation of receiving on the ‘resale’ the amount of the ‘deposit’.” On the basis that what occurs results in passage of title to the bottles, the principal opinion holds that the bottles in question qualify under § 144.-615(6) as tangible personal property held solely for resale.
In my view, the conclusion that the transaction between bottler and retailer is technically a “sale” is an inadequate basis upon which to decide this case. Section 144.-615(6) grants an exemption only if the property is held solely for resale in the ordinary course of business. Yet, the principal opinion looks only at whether the transfer of the bottles between bottler and retailer can be characterized as a sale. Having concluded that it can, the principal opinion fails to make the more fundamental inquiry mandated by § 144.615(6) as to the purpose for which the property is held by the bottler. The requirement that property be held solely for resale cannot be ignored or written out of the statute. It must be given some meaning. In my view, it can be read to mean nothing less than that property may be held for continuing and repeated use in the operation of the business, and therefore subject to tax, even though technically a sale thereof from time to time was contemplated and may be said to have occurred.
When the statute is so interpreted and it is recognized that the exemption granted by § 144.615(6) applies only to property which is held solely for resale and not for any other purpose, it is plain that the analysis made in the principal opinion is incomplete and inadequate. As previously noted, it focuses only on the question of whether one purpose for which the bottlers hold the bottles is resale rather than on the more pertinent question of whether such is the only purpose or is one of multiple purposes.
Even assuming that what occurs results in a technical sale so that the bottler could not enforce recovery of the bottles and the retailer is not obligated to return the bottles, the fact remains that the stipulated facts on which this case was submitted establish that these bottles were not held solely for resale. Instead, it is clear that they were acquired and held with the expectation that the bottles would be returned for reuse after the contents were consumed and that they would be used over and over in the bottling and sale of plaintiffs’ soft drinks. In fact, on the average, bottles were returned and were reused seven to twelve times. The bottlers followed procedures designed to bring about such return and reuse of bottles. They advertised from time to time to encourage consumers to purchase soft drinks in the most economical manner, which is in a reusable bottle which can be returned for the deposit made thereon when the beverage was purchased. In the case of plaintiff Macon Coca-Cola Company, it has advertised for years, “Wouldn’t You Rather Borrow Our Bottles Than Buy Them?”
Other stipulated facts show that the bottles were acquired and held primarily for repeated use in bottling and selling beverages rather than solely for selling them in the usual course of business. When one in business has items solely for resale, it is to be expected that such items will be priced to bring at least cost or, more likely, cost plus a reasonable profit. Plaintiffs did not do this. Instead, bottles were priced at from one-third to one-half of actual cost. Smaller size bottles cost bottlers 10$ to 15$ each but the deposit or charge therefor by the bottler to retailers was only 5$. Bottles larger than 16 oz. cost 20$ to 25$ but the deposit or charge thereon to retailers was only 10$.
Bookkeeping methods also reflected that these bottles were purchased and held pri*70marily for reuse rather than resale in the usual course of business. Each day, when the bottler sold his bottled product to retailers, he did not simply enter gross receipts for product, including beverage and bottles. Instead, he entered on his books a separate record of amounts received from retailers for bottle charges or deposits. That record also gave the amounts expended each day for bottles returned. In addition, Moberly Bottling Company depreciated the cost of each new bottle over a four-year period at the rate of 25% each year. Jefferson City Coca-Cola Company carried new reusable bottles on its books at cost “until the new bottles are placed in service, when the value of each such bottle is changed to its deposit value. The difference between the cost value and the deposit value is charged off as a business expense.” The stipulation does not indicate at what point the bottle is charged off completely. “Smith Beverage Company, upon purchase of new reusable bottles, immediately inventories, and thereafter carries each bottle at its deposit value.” Quarterly profit and loss statements reflect as a loss in inventory this difference between the cost of bottles purchased and the deposit value of the bottles. None of these methods are ones reasonably expected in the case of goods purchased and held solely for resale.
The principal opinion cites several cases from other states in support of the conclusion it reaches. Those cases, like the principal opinion, emphasize and rely on the fact that the transactions between bottlers and retailers have attributes of a sale and purchase in which the bottler has no right to insist on return of bottles and the retailer and ultimate consumer are free to return or keep bottles as they choose.2 On the other hand, certain other cases, cited but not followed in the principal opinion, examine the whole picture to determine the purposes for which bottles are purchased and held. They conclude, as I would here, that the bottles are purchased and held for reuse, not just sale. For example, in District of Columbia v. Seven-Up Washington, 93 U.S.App.D.C. 272, 214 F.2d 197 (1954), the bottler sold bottled drinks at prices which, as here, included only a fraction of the cost of bottles and cases. No formal agreement for return or repurchase of the bottles and cases existed but it was understood that the bottler would give credit for those returned. The Tax Court, on the basis that title passed without obligation to return but with an option to do so, held that the bottles and cases were purchased by bottlers for resale. In reversing that ruling, the appellate court said, 93 U.S.App.D.C. at 275, 214 F.2d at 200:
“[W]e think the Tax Court erred in holding that purchases of the bottles and cases by respondents were for the purpose of resale to their customers. The purpose was to use them, not to resell them. Respondents are not in the business of selling bottles or cases but of using them as a means of marketing their soft drinks. We have seen that a charge is made, or a deposit required, for the containers, and that a high percentage of them are returned, whereupon a credit for the charge or deposit is given, or its amount is refunded in cash. We have seen also that this amount is much less than the value of the containers. If full value were charged, sale of the soft drinks themselves would be impeded because of the larger outlay required of purchasers. Yet the fact that some charge is made for the containers, with refund available, induces their return, because respondents’ customers, like respondents, also are not in the business of buying and selling bottles and cases, but soft drinks. When we advert further to the fact that except for this constant return of bottles and cases the respondents’ businesses could not survive, because the charge or deposit required for the containers is less than their cost, the *71true purpose of their purchase is apparent. It is to use and reuse them. * * ”
Subsequently, 93 U.S.App.D.C. at 276, 214 F.2d at 201, the court summarizes:
“Thus the ‘sale’ or ‘buying’ aspect of the dealing between respondents and their customers is overshadowed by respondents’ use. We must keep in mind that the statute does not provide that the tax shall not apply whenever there is a resale ; it is only when the purpose of the purchase is to resell. The true purpose here is not to resell but to use, even if this use is made possible in part through the form of resale and repurchase. * * ” (Emphasis supplied.)
I find the foregoing to be well reasoned and highly persuasive. The court’s analysis and conclusion coincides with that mandated by our statute for the exemption claim asserted by bottlers in this case.3
Although the principal opinion does not rely on the legislative history of the act and the sequence of Department of Revenue rules to justify its conclusion, it does discuss them in response to contentions in the appellant’s brief. Some discussion thereof in this dissent is appropriate.
Prior to the adoption of Rule 34 in 1973, the Department’s Rule 93 was in force. It provided that bottles containing soft drinks and other beverages were taxable under the retail sales act when sold at retail. Retailers were to remit sales tax on the selling price of the beverage plus the deposit on bottles. It then provided for handling for tax purposes when the bottles were returned for refund, including provisions for refund claims. The rule stated that purchases of bottles by bottlers were for resale and not taxable.
This procedure evidently caused much bookkeeping and confusion at the retail level and, as the principal opinion notes, in 1973 the legislature amended the sales tax act, apparently to relieve the cumbersome process of collecting sales tax on bottle deposits. It enacted § 144.011, effective September 15, 1973,4 which provides:
“For purposes of sections 144.010 to 144.510 and the tax imposed thereby, the definition of ‘sale at retail’ shall not be construed to include the transfer of reusable containers used in connection with the sale of tangible personal property contained therein for which a deposit is required and refunded on return;”
After that enactment there was no sales tax collected at the retail level. The legislature said that when tangible personal property is placed in reusable containers, for which a deposit, refundable on return, was required, the transfer of the reusable container would not be a sale at retail under the sales tax act. As a result of that enactment, the Department of Revenue reexamined the situation and issued Rule 34 which implicitly concludes that reusable containers purchased and held by bottlers are not held solely for resale. It provided that a tax thereon is due at the time of purchase.
The principal opinion seems to conclude that Rules 93 and 34 are inconsistent. However, a closer examination reveals that the premise of this conclusion is unsound. The principal opinion states that “when § 144.011 was enacted, the Revenue Department by Rule 93 had declared its interpretation of § 144.615(6) as exempting [the transaction between bottlers and retailers] for the reason such sales were considered ‘sales for resale’.” [At 67, emphasis supplied.] Rule 93 could not have involved an interpretation of § 144.615(6) because it addressed only the liability of the bottler for sales tax and, by its terms, § 144.615(6) applies only to the use tax. Although it need not be decided in this case, it would appear that Rule 93 was correct in determining bottlers not liable for sales tax because under §§ 144.010(8) and .020 of the *72sales tax law, the transaction may be characterized as a sale at wholesale. The principal opinion so concludes at p. 66.
Labeling the transaction a “sale for resale” for purposes of liability for sales tax in Rule 93, although perhaps an inartful choice of words, is by no means inconsistent with the conclusion of Rule 34 that the bottles are not held “solely for resale” so as to be exempt from the use tax. Under the sales tax law, § 144.010(8), a sale includes “any transfer, . . . conditional or otherwise ... of tangible personal property for a valuable consideration . . . ” but § 144.020 taxes only retail sales, which the transfer from bottler to retailer plainly is not. The sales tax provisions under which Rule 93 declared the transaction exempt from the sales tax laws obviously require no inquiry into whether a sale is the sole purpose of the transaction. Thus, to compare the two rules is to compare apples and oranges.
The sales tax act and compensating use tax act envision compensating taxes and are designed to tax the sale of property only once. That tax was imposed under Rule 93 on the sale to the consumer until § 144.011 was enacted to effectively remove the bottles from the ambit of the sales tax. When this occurred, the Director quite properly conducted a fair reappraisal of what actually occurs and concluded that the bottlers were using the bottles in the course of their business within the meaning and intent of § 144.610. He further concluded that such bottles were not held solely for resale in the ordinary course of business as required for use tax exemption under § 144.615(6) for the reason that they are primarily held as a convenient means of transporting the actual product to the consumer on a recurrent and highly predictable basis. In my view, the stipulated facts in this case establish the correctness of this position.
On the basis of the foregoing, it is apparent that the principal opinion not only fails to apply the conceded rule that exemption statutes are to be construed narrowly but also, as a practical matter, amends the statute by a construction which ignores the word “solely”. The taxpayers in this case plainly failed to sustain the burden of showing that the reusable bottles were held “solely for resale in the regular course of business.” On the contrary, the stipulated facts clearly reflect the validity of Rule 34. The judgment below should be reversed and remanded with directions.
. All statutory references are to RSMo 1969 unless otherwise indicated.
. Coca-Cola Bottling Works Co. v. Kentucky Dep’t of Revenue, 517 S.W.2d 746 (Ky.1974), upon which the principal opinion primarily relies, is not contrary to the views expressed herein. The Kentucky statutory scheme is considerably different from our own and the court made no inquiry into whether the bottles were held for any purpose other than resale.
. See also Arkansas Beverage Co. v. Heath, 257 Ark. 991, 521 S.W.2d 835 (1975); Gay v. Canada Dry Bottling Co. of Florida, 59 So.2d 788 (Fla.1952); Wichita Coca-Cola Bottling Co. v. United States, 152 F.2d 6 (5th Cir. 1945).
. Laws 1973, p. 223, § 1.