(dissenting). Plaintiffs paid a "sales tax” on services rendered by Ned’s Auto Supply Company and brought a class action against Ned’s and the Firestone Tire & Rubber Company.1 The Court of Appeals in affirming the Wayne Circuit Court’s order dismissing the action held that the General Sales Tax Act and administrative orders authorize such a practice and that the defendants were not unjustly enriched because they transmitted the funds to the State of Michigan. 56 Mich App 440 (1974). We granted leave to appeal. I find that the statute does not authorize the imposition of a "sales tax” on services and that the defendants were unjustly enriched. Therefore, I would reverse the Court of Appeals and remand for further proceedings in the trial court.
In examining the relevant statutes, I find no legislative intent for a "sales” tax to be levied on services. Accordingly, the instant retailer’s practice — that of charging a sales tax on a service, and then passing such revenue on to the state — was not authorized by statute.2
Section 2 of the General Sales Tax Act3 provides that a retailer must maintain separate books to show taxable transactions separate from nontaxable transactions. Section 2 pertinently provides:
*479"Any person engaged in the business of making sales at retail who is at the same time engaged in some other kind of business, occupation, or profession not taxable under this act, shall keep books to show separately the transactions used in determining the tax herein levied.”
This section then provides:
"In the event of such person failing to keep such separate books, there shall be levied upon him the tax hereinbefore mentioned equal to 4% of the entire gross proceeds of both or all of his businesses. The taxes levied hereunder shall be a personal obligation of the taxpayer.” (Emphasis added.)
The imposition of the tax on gross proceeds is a penalty assessed against the retailer for failure to comply with the statutory requirement to keep separate books.
Section 23 of the act4 provides:
"[n]othing contained in this act shall be deemed to prohibit any taxpayer from reimbursing himself by adding to his sale price any tax levied hereunder.”
However, this section should not be read as authorizing the retailer to reimburse himself from the consumer for penalties assessed on him under § 2. To permit such a practice would destroy the deterrent effect of imposing the 4% tax on gross proceeds which clearly was included in § 2 to encourage compliance with the requirement to maintain separate books.5
The Court of Appeals found that there had been *480no unjust enrichment because the defendant retailer merely passed the collected funds to the state. However, the retailer was enriched because 1) it illegally passed on to the consumer the cost of the penalty prescribed by § 2 in violation of the letter and spirit of statute, and 2) the retailer was able to reduce operating expenditures by not employing, a dual accounting system for the sale of goods and for the sale of services.
I would reverse the Court of Appeals and remand this case to the Wayne Circuit Court for furthér proceedings not inconsistent with this opinion.
No costs, a public question of first impression being involved.
Levin, J., concurred with Williams, J.A complete background for this case may be found at 56 Mich App 440; 224 NW2d 103 (1974).
In 1974 the Legislature expressly provided that service charges must be separately itemized:
"Notwithstanding the provisions of section 2, labor or service charges involved in maintenance and repair work on tangible property of others shall be separately itemized and the tax applied only to the amount charged for the tangible personal property sold.” 1974 PA 39, MCLA 205.55a; MSA 7.526(1).
MCLA 205.52; MSA 7.522.
MCLA 205.73; MSA 7.544.
I am aware that MCLA 205.51; MSA 7.521 defines the word tax to include "all taxes, interest or penalties levied under this act”. My Brother Lindemer argues that this definition allows the retailer to reimburse, himself for penalties imposed under § 23. However, I cannot believe that the Legislature intended by this definition to *480render its own penalty provision ineffective by allowing the burden of the penalty to be shifted to the innocent consumer under the guise of a sales tax. ,