dissenting.
I respectfully dissent.
In this case, Superior Aircraft, a Missouri corporation with an office in Lebanon, Missouri, and its principal place of business in Ohio, purchased an airplane in Kansas, in order to lease it to Ohio Aviation Company. The airplane was hangared and repaired in Ohio. When the airplane was not in use by Ohio Aviation, Superior was allowed to use it. Superior in fact used the airplane on flights to Missouri for only 7% of the period in question.1 The Department of Revenue has attempted to impose an unapportioned tax on the airplane, since no other state has imposed such a tax. The majority would allow the tax. I disagree with the majority’s position.
There are two issues in this case, (1) whether § 144.610, RSMo 1986,2 authorizes appellant to levy a use tax under these circumstances and (2) whether the levy of a use tax under these circumstances violates the Commerce Clause of the United States Constitution, Article I, Section 8, Clause 3.
Section 144.610.1 provides:
A tax is imposed 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 sections 144.600 to 144.745 in an amount equivalent to the percentage imposed on the sales price in the sales tax law in section 144.020. This tax does not apply with respect to the storage, use or consumption of any article of tangible personal property purchased, produced or manufactured outside this state until the transportation of the article has finally come to rest within this state or until the article has become commingled with the general mass of property of this state.
Here, for safety reasons, the plane was in Missouri for one night before proceeding to its destination in Ohio. Once in Ohio, the plane was under the primary control of Ohio Aviation, the lessees. Only when Ohio Aviation was not using the plane was respondent allowed to use it for short trips to Missouri. The plane was repaired and hangared in Ohio. Under these circumstances, I think that the airplane did not “finally come to rest within this state”3 *509and that appellant lacks statutory authority to tax the respondent.
Even if one assumes, arguendo, that § 144.610.1 authorizes a tax on respondent in these circumstances, such a tax must pass commerce clause scrutiny.
As the majority recognizes:
Prior case law has established that a state tax is not per se invalid because it burdens interstate commerce since interstate commerce may constitutionally be made to pay its way. Complete Auto Transit, Inc. v. Brady, 430 U.S. 274 [97 S.Ct. 1076, 51 L.Ed.2d 326] (1977). See Western Live Stock v. Bureau of Revenue, 303 U.S. 250 [58 S.Ct. 546, 82 L.Ed. 823] (1938). The State’s right to tax interstate commerce is limited, however, and no state tax may be sustained unles the tax: (1) has a substantial nexus with the State; (2) is fairly apportioned; (3) does not discriminate against interstate commerce; and (4) is fairly related to the services provided by the State. Washington Revenue Dept. v. Washinton Stevedoring Assn, 435 U.S. 734, 750, 98 S.Ct. 1388, 1399, 55 L.Ed.2d 682 (1978).
Maryland v. Louisiana, 451 U.S. 725, 754, 101 S.Ct. 2114, 2133, 68 L.Ed.2d 576 (1981).
This test is a departure from our prior case law. See Management Services v. Spradling, 547 S.W.2d 466 (Mo. banc 1977); King v. L. & L. Marine Service, 647 S.W.2d 524 (Mo. banc 1983). This departure is required by and reflects the United States Supreme Court’s clarification of the apparently conflicting precedents in the area. Mobil Oil Corp. v. Commissioner of Taxes, 445 U.S. 425, 443, 100 S.Ct. 1223, 1234, 63 L.Ed.2d 510 (1980). The “taxable moment” test of prior case law should be replaced with this new, four-prong test.
Here, there is no allegation that the tax fails to fulfill the first and third of the requirements announced by the United States Supreme Court. The problems with the majority’s analysis arise with the second and fourth requirements.
The second requirement is that the tax “is fairly apportioned.” In this case the airplane spent only 7% of the period in question on trips to Missouri for respondent. Appellant seeks to tax respondent as though the airplane were used exclusively in Missouri. An unapportioned tax on an item that was only related to Missouri 7% of the time is not, in my view, “fairly apportioned.” The fact that the tax credit system may apportion the tax if other states impose a tax does not make this tax fairly apportioned in this case.
The fourth requirement is that the tax “is fairly related to the services provided by the state.” Here, the airplane was han-gered and serviced in Ohio. Respondent only utilized Missouri’s services on five short trips during the year in question. Clearly, this tax, which is levied as though the respondent utilized the services of the state for its airplane throughout the year, is not “fairly related to the service provided by the State.”
I cannot support taxation based upon such transient contacts with Missouri.
I would affirm the Administrative Hearing Commission of Missouri.
. The majority states that the airplane logged 17.7% of its flight time from April 1980 through September 1981 on trips to Missouri. However, the period in question is January 1, 1981 to September 30, 1981. During that period, the airplane logged five trips to Missouri:
1. March 14, 1981 — March 16, 1981; 2 days
2. April 25, 1981 — April 27, 1981; 2 days
3. June 20, 1981 — June 25, 1981; 5 days
4. June 27, 1981; 1 day
5. July 23, 1981 — August 1, 1981; 9 days.
The airplane spent a total of 19 days on trips to Missouri, between January 1, 1981 and September 31, 1981. This represents less than 7% of the period in question.
. All statutory references herein are to RSMo 1986, unless otherwise indicated.
. This statutory requirement appears to require the equivalent of "domicile” for the airplane.
What has been said to be the most comprehensive and correct definition which could be given is that, in a strict legal sense, the domicile of a person is the place where he has his true, fixed, permanent home and principal establishment, and to which, whenever he is absent, he has the intention of returning.
Domicile has also been defined as that place in which a person’s habitation is fixed, without any present intention of removing therefrom, and that place is properly the domicile of a person in which he has voluntarily fixed his abode, or habitation, not for a mere special or temporary purpose, but with a present intention of making it his permanent home.
Domicile has been defined, in terms of its elements, as residence at a particular place, accompanied by an intention, either positive or presumptive, to remain there permanently or for an indefinite or unlimited length of time.
28 C.J.S. Domicile § 1 (1941).