(dissenting). I dissent from the proposition that the taxpayer's sale of its business was a sale "at retail" which was subject to a retail sales tax under *278sec. 77.52(1), Stats. (1981-82).1 It is undisputed that the taxpayer sold its entire business in two transactions, effective January 17, 1983 (retail division), and February 18,1983 (commercial division). The sole reason the Tax Appeals Commission affirmed the department's denial of the taxpayer's petition for rede-termination of its sales tax liability was that the taxpayer failed to prove that after these sales, it did not continue to make sales at retail.
Section 77.54(7), Stats. (1981-82), exempts from sales and use taxes "occasional sales" of tangible personal property and services. In affirming the department's determination, the commission relied solely on the definition of "occasional sales" in sec. 77.51(10), Stats. (1981-82), which provides:
"Occasional sales" includes: (a) Isolated and sporadic sales of tangible personal property . . . where the infrequency, in relation to the other circumstances . . . supportfs] the inference that the seller is not pursuing a ... business ... as a vendor of personal property or taxable services. No sale of any tangible personal property or taxable service may be deemed an occasional sale if at the time of such sale the seller holds or is required to hold a seller's permit_[Emphasis added.]
The commission concluded that the taxpayer had failed to prove that after its sale of its retail division, it had not continued to make retail sales. In its opinion the commission concluded that because the taxpayer had filed sales and use tax returns for January and February 1983, it admitted that it made taxable sales after *279its attempted surrender of its sales tax permit prior to the sale of its retail division.
I submit that there was no reason for the commission to look beyond sec. 77.52(1), Stats. (1981-82), to determine whether the taxpayer's sales of its retail and commercial divisions were subject to a retail sales tax. The critical inquiry under sec. 77.52(1) is whether the taxpayer has made a sale "at retail."2 The taxpayer was not required to seek an exemption under sec. 77.54(7), Stats. (1981-82), because it did not make an occasional sale when it sold its business. An examination of sec. 77.54(7) demonstrates that the exemption thereunder applies only when, without the exemption, the sale by the taxpayer would be "at retail" and subject to sales tax.3 Because it is undisputed that the taxpayer's sales of its retail and commercial divisions *280were not "at retail," I conclude that the commission should have reversed the department's determination.
See also Fiedler Foods, Inc. v. DOR, 142 Wis. 2d 722, 728, 419 N.W.2d 311, 314 (Ct. App. 1987) (Sundby, J., dissenting).
I am aware that the taxpayer does not make this precise argument. However, a petition to review our decision is likely. Gansch v. Nekoosa Papers, Inc., 158 Wis. 2d 743, 463 N.W.2d 682 (1990), was decided on an issue first presented in Gansch v. Nekoosa Papers, Inc., 152 Wis. 2d 666, 449 N.W.2d 307 (Ct. App. 1989) (Sundby, J., dissenting), rev'd, 158 Wis. 2d 743, 463 N.W.2d 682 (1990). I suggest that it is appropriate for the Wisconsin Supreme Court to consider whether the legislature intended that the taxpayer shall be liable for sales not "at retail" merely because some administrative "glitch," wherever it occurred, makes questionable when the taxpayer surrendered its seller's permit or made its last sale "at retail." The fact that the taxpayer cannot explain (in this case, because of the lapse of time and the destruction of its records) inconsequential receipts after the sale of its business should not transmute that sale into something the undisputed facts show it was not.
Section 77.54(7), Stats. (1981-82), applies to the occasional sale of a motor vehicle, snowmobile, mobile home, trailer, semi-trailer, aircraft, boat, and the like.