dissenting.
The court today holds that the sales tax statute does not permit taxation on alteration services performed by a retail clothing store because the alterations are separable from the purchase of the garment. According to the court's holding, the alterations are separable from the purchase transaction regardless of when the alterations are performed on the garments.
In my opinion, alterations performed in connection with the sale of a garment and completed prior to a customer taking possession of the garment are part of the same purchase transaction and therefore, should be subject to the sales tax. Accordingly, I respectfully dissent.
I.
The sales tax statute relevant to these proceedings provides that:
[Thhe sales tax is imposed on the full purchase price of articles sold after manufacture or after having been made to order and includes the full purchase price for, material used and the service performed in connection therewith, ... [T]he sales price is the gross value of all materials, labor, and service, and the profit thereon, includ*685ed in the price charged to the user or consumer.
§ 39-26-102(12), 11 C.R.S. (2000). The sales tax is assessed "[on the purchase price paid or charged upon all sales and purchases of tangible personal property at retail." $ 39-26-104(1)(a). Regulations promulgated by the Department of Revenue define "tangible personal property" as including "all goods, wares, merchandise, products and commodities, and all tangible or corporeal things and substances which are dealt in, capable of being possessed and exchanged, except newspapers excluded by the law." 1 Colo.Code Regs. § 201-4, Reg. 26-102.15 (1986)(empha-sis added).
I would establish a test that determines the taxability of a transaction involving both a sale of goods and a rendition of services based on the ownership of the goods at the time of the rendition of the service. In cases where the service is undertaken at the time of the sale-i.e., when the customer does not own the property prior to the service being completed-the sale of the property and the rendition of services become part of the same purchase transaction and therefore are taxable as part of the original purchase price. Likewise, in cases where the customer completes the sale prior to contracting for the rendition of services, the performance of the service operates as a separate transaction and is not taxable. This distinction is supported by the plain language of the Department of Revenue regulations, which define "tangible personal property" as property "capable of being possessed or exchanged."
By applying the Uniform Commercial Code to these facts, I would reach the same conclusion: that alterations completed at the time of the original purchase transaction are taxable. The applicable Code provision that refers to the passage of title for personal property in a purchase transaction provides:
(8) Unless otherwise explicitly agreed, where delivery is to be made without moving the goods:
(a) If the seller is to deliver a document of title, title passes at the time when and the place where he delivers such documents; or
(b) If the goods are at the time of contracting already identified and no documents are to be delivered, title passes at the time and place of contracting.
§ 4-2-401(8), 2 C.R.S. (2000). The official comment to this provision explains that "the factual situations in subsection ... (8) upon which passage of title turn actually base the test upon the time when the seller has finally committed himself in regard to specific goods." § 4-2-401, emt. 4.
In this case, where alterations are undertaken at the time of the sale of a garment, title does not pass until the alterations have been made to the customer's satisfaction. When the garment is accepted by the customer, title passes and the transaction is complete. Since the purchase transaction is not complete until after the alterations have been made and the customer has accepted the garment, the alterations are a part of the same transaction and are taxable. Thus, applying the Uniform Commercial Code to this case further supports the conclusion that alterations performed in connection with the sale of a garment and conducted prior to a customer taking possession of the garment are part of the same purchase transaction and therefore, should be subject to Colorado's sales tax statute.
IL
The majority summarily concludes that the alterations in this case are "separable" from the sale of the garment. The majority refers to tests formed by several other jurisdictions concerning the taxable nature of transactions combining a sale of products and a rendition of personal services, but emerges with no clear test of its own.
The majority first cites the test set forth in two Massachusetts cases, Houghton Mifflin Co. v. State Tax Commission, 373 Mass. 772, 370 N.E.2d 441 (1977) and Information Services, Inc. v. Commissioner of Revenue, 48 Mass.App.Ct. 197, 718 N.E.2d 1256 (1999). Maj. op. at 684. This test determines whether services are taxable under Massachusetts's sales tax act based on whether the products and the services are "separable" or "inseparable." Houghton Mifflin, 370 N.E.2d at *686442; Information Servs., 718 NE.2d at 1257.1
The majority also mentions the test established in Sharp v. Park 'N Fly of Tex., Inc., 969 S.W.2d 572 (Tex.Ct.App.1998). Maj. op. at 684. The Texas Court of Appeals determined that when calculating the amount of sales tax owed on a transaction that includes both a sale and a service-in that case a car parking business that provided parking and airport transportation to its customers-a court should consider whether the service of transportation is "incident to" the parking. Sharp, 969 S.W.2d at 575.
Without reaching a definitive conclusion as to which test should be adopted by the Colorado courts, and how such a test should be applied, the court today concludes that "the alteration services were separable from the sale of the garment." Maj. op. at 684. This conclusion fails to provide any guidance to courts for determining whether a transaction involving both a sale of goods and a rendition of services is taxable under the sales tax statute.
IIL
The majority cites four situations in which charges for alterations are at issue: (1) the customer's fitting occurs at the time of the sale and the alteration labor is reflected on the original sales ticket; (2) the customer purchases the garment, leaves it at the store and returns later for a fitting and eventual alterations; (8) the customer returns a previously purchased item for alterations; or (4) a customer purchases an item as a gift and the recipient returns later for alterations. Maj. op. at 681-82. The majority holds that these alteration services should be treated identically, for the purposes of the sales tax statute, even though they are contracted for at different times relative to the time of the original sale. Id. at 684.
~I disagree. I would distinguish situations where the alterations are undertaken at the time of the sale of a garment, and hold that alterations in this type of situation are part of the original purchase transaction and therefore are taxable as part of the original purchase price. In this instance, the alterations are performed to complete the sale of a particular garment and are necessary to make it salable. A customer in this situation also may reject the altered garment and receive a refund for the returned garment. These circumstances show that when alterations are connected to the original sale, the garment and the alterations are part of the same transaction and should be taxed accordingly.
The majority argues that the Department of Revenue does not impose sales tax on services that are incidental to the sale of property. Id. at 688. There is no regulation directly addressing the alteration of clothing; as such, the majority cites Colorado regulations governing upholsterers as support for its contention. Id. The majority asserts that only the material used by an upholsterer is taxable, and that the services of an upholsterer in repairing a piece of furniture are not taxable. Id. This interpretation, however, conflicts with the plain language of these regulations. See 1 Colo.Code Regs. § 201-5 (1986). The regulations specifically distinguish situations where an upholsterer reupholsters furniture that already belongs to the *687customer, and situations where an upholsterer purchases furniture, reupholsters it, and then sells it to a customer. Id. In the former situation, the upholsterer may only charge the customer sales tax on the material used to perform the service. Id. In the latter situation, however, the upholsterer is required to charge sales tax on the entire selling price of the item of furniture. Id. For these reasons, I believe that the majority's reliance on the upholstery regulations for support is misplaced. The distinction that the Department of Revenue has drawn for garment alterations is the same distinction that it has drawn for reupholstering furniture. Therefore, we should defer to the expertise of the Department of Revenue in applying the sales tax statute. Colo. Dep't of Revenue v. Woodmen of the World, 919 P.2d 806, 817 (Colo.1996); Hewlett-Packard w. State, Dep't of Revenue, 749 P.2d 400, 406 (Colo.1988)2
Because I believe that alterations contract, 'ed for at the time of the sale of the garment are part of the original purchase transaction, rather than personal services separately contracted for, I would hold that such alterations are taxable as part of the purchase price of the garment.
1 am authorized to state that Justice HOBBS and Justice MARTINEZ join in the dissent.
. The majority also refers to the South Carolina Supreme Court's decision in Meyers Arnold, Inc. v. South Carolina Tax Comm'n, 285 S.C. 303, 328 S.E.2d 920 (App.1985), as concluding that "gift wrapping services are not part of the sale as the services are separable from the purchase." Maj. op. at 684. The court in that case, however, did not reach the issue of separability in regards to the store's gift wrapping policy. The store in Meyers offered free gift wrapping of goods purchased by its customers, provided that a certain quality of wrapping paper was used. If the customer preferred a higher quality wrapping paper, the customer had to pay a fee. In determining whether the extra charge collected by the store was for the gift wrapping service (and therefore taxable under South Carolina's Tax Commission regulations on gift wrapping), or for the sale of wrapping paper (and therefore exempt from tax), the court concluded:
It is clear from the stipulated facts that the charge is for the higher quality paper and not for the wrapping services. A customer can have his purchase gift wrapped at no charge if he chooses the lower quality paper. This refutes any argument that the charge is for the service of wrapping.
Meyers Arnold, 328 S.E.2d at 922. Thus, Meyers does not provide any guidance for the case at bar.
. In addition, the majority's reliance on regulations concerning sand and gravel is unpersuasive. See Maj. op. at 683. A fundamental difference between the service of hauling sand and gravel and the alterations performed in this case is that the delivery services mentioned in the sand and gravel regulations do not alter the material or product being delivered. See 1 Colo. Code Regs. § 201-5 (1986). Furthermore, sales tax is applied to the delivery charges for the sand and gravel unless the purchaser expressly states that he is the owner of the sand or gravel at a time prior to delivery. Id. Therefore, as with the upholstery regulations, the threshold determination as to whether the service is taxable depends on the time of the passage of title relative to the time of the performance of the service.