concurring.
I concur fully in the Court’s opinion. I write separately to express my doubts about the continued validity of James v. TRES Computer Systems, Inc., 642 S.W.2d 347 (Mo. banc 1982).
TRES Computer, a Texas based corporation, sold computer software to a Missouri customer. The software arrived at the customer’s place of business on computer tapes by which the customer loaded the software onto its computer. The Court determined that the taxpayer owed use tax only on the fifty dollar retail value of blank computer tapes purchased by a Missouri customer and owed no tax on the remaining $135,000 purchase price.
The Court expressly refused to establish a “fixed, general rule” for taxation of software in the “rapidly developing” area of computer technology. Id. at 349. I believe the Court’s hesitancy stemmed in large measure from the director of revenue’s factual stipulation that the data transported on the computer tapes was “intangible property.” In my view, that stipulation gave away the case and rendered the director’s more metaphysical argument that the data became part of the tape itself untenable. Whether the data carried by a computer tape or a telephone line is intangible is a matter that this Court has not decided.
This case turns on the manner in which the taxpayer structures the transaction. His proposal letter clearly contemplates the sale of tangible property to the architectural firm, not the sale of architectural services. That Mr. Sneary is trained and licensed as an architect enhances his marketability; it does not change the nature of the transaction he enters, i.e., the sale of an illustration to an architectural firm. Nor does the fact that the architectural firm uses Mr. Sneary’s product as a tool to enhance its services change the result. Mr. Sneary’s work, though far different in appearance, is functionally equivalent to the purchase of paper and pencils by the architectural firm.
As is often the case in matters of taxation, simple adjustments in the transaction between Mr. Sneary and the architectural firms might allow Mr. Sneary to avoid sales tax liability. In matters of taxes, form often controls substance. Had Mr. Sneary contracted to provide architectural services instead of contracting to produce a specific item of tangible property for a set price, we would be faced with a different question.