dissenting.
I respectfully dissent. The sales tax in this case was being imposed upon the sale of furnishings (cash registers, counters, meat slicers, shopping carts, etc.) which were in the two buildings used as grocery stores. The petitioners, as a partnership, owned the two grocery store buildings and the furnishings within them, and leased the buildings and furnishings to two corporations which petitioners owned. These two corporations operated grocery stores using the buildings and furnishings to do so. The *251partnership contracted to sell the furnishings and lease the grocery store buildings to Wetterau, Inc. The two corporations, Sta-ley’s Super Foods, Inc., and Reed’s Super Foods, Inc., were to transfer the business of the two markets to Wetterau, Inc., as part of the total transaction. It seems clear that the use of the buildings and furnishings by petitioners and their corporations for the operation of grocery stores was a business enterprise and not a nonbusiness enterprise. The lease of the buildings, the sale of the furnishings and transfer of the “business” of the two markets to Wetterau were business transactions that included as part thereof the sale of the furnishings. In my opinion, there is no “nonbusiness enterprise” involved in this matter at all. If that which is being sold, leased, or transferred can be called an “enterprise”, it is a business enterprise in every respect and not a nonbusiness enterprise. The amount of the sale was over $3,000 and therefore, in my opinion, the sale of the furnishings was taxable under § 144.010.1(2), RSMo 1978, unless the sale is not taxable because of the last sentence of § 144.010.1(2) which provides that if the sale was exempt on June 1, 1977, then it remains exempt.
In my opinion the sale was taxable under the law as of June 1,1977. See, fn. 2 of the principal opinion for the applicable statute. The partnership listed “rentals” as its principal business in its 1976 income tax return and was depreciating its rental tangible personal property — the furnishings it later sold — as any normal business items. The partnership was in the business of renting the two buildings and the “furnishings” to its two corporations operating grocery stores. The partnership remains in the business of leasing of the buildings as it now leases the buildings to Wetterau. The “furnishings” which it formerly leased to the two corporations as the business of the partnership are now sold to Wetterau.
Generally, every seller is required to report and pay sales tax to the Director of Revenue based upon his “gross receipts”. See, §§ 144.021, 144.080, and 144.100, RSMo 1978. The term “gross receipts” as defined in § 144.010.1(3) includes the lease or rental consideration where the right to continuous possession or use of any article of tangible personal property is granted under a lease or contract and such transfer of possession would be taxable if outright sale were made.
Utilizing these definitions, the partnership was certainly in the “business” of renting tangible personal property, a classification which was subject to the terms of §§ 144.010-144.510. This being so, the petitioners were not entitled to claim an exemption from the payment of sales tax because of an isolated or occasional sale of tangible personal property by a person not engaged in “business”.
I believe the definition given to “non-business enterprise”, as that phrase appears in § 144.010.1(2) by the principal opinion, is incorrect. It seems to me the phrase providing for exemption from tax on sales of certain items, if the sale did not exceed $3,000, was designed to describe the things sold and not for the purpose of describing the activity engaged in by the owner of the thing sold. It exempts personal property “sold in the course of the partial or complete liquidation of a household, farm or nonbusiness enterprise”. A “household” is not a business; a farm, as such, may or may not be a business; and a person can engage in certain enterprises which would not be a “business”, e.g., stamp collecting or other hobbies which are not “business” as that term is defined in the opening sentence of § 144.010.1(2). “ ‘Business’ includes any activity engaged in by any person . . . with the object of gain, benefit or advantage, ... and the classification of which business is of such character as to be subject to the terms of sections 144.010 to 144.510.” I fail to see how the ownership and leasing of two store buildings and the “furnishings” necessary to operate a grocery business can be classified under § 144.010 as' “nonbusiness”. It is, in my opinion, clearly a business enterprise and the sale of the personal property is therefore taxable in this case.
I therefore dissent.