dissenting. Code Ann. § 92-3448a provides in part: “Any person who contracts, either orally, in writing, or by purchase order, to perform any service, and the principal part of that service is the furnishing of the machinery which will not be under the exclusive control of the contractor, shall be liable to collect a sales tax on the rental value of the machinery so used. . .” Therefore, Grantham Transfer Co. is obligated to collect and remit a sales tax on the rental value of the equipment if (a) the principal part of its service to the carrier consists in furnishing the vans which are the subject matter of the lease and (b) these vans are not under Grantham’s exclusive control.
(a) In construing the words “principal part” we note that in the transactions at issue the purpose of the lessee is to obtain a means of hauling cargo which it has contracted to transport. This means vans, tractors and trailers. Without vehicles the carrier cannot undertake its commitment at all. With the vehicles, arrangements specifying which party hires drivers, furnishes gasoline, oil, repairs and so on are matters of convenience which might be done by either but which are of no use at all unless the vans are available. I therefore think the furnishing of the equipment is the principal part of the service.
(b) As to the issue of exclusive control, the sales tax involved here is in the nature of an excise or license and occupation tax. Williams v. General Finance Corp., 98 Ga. App. 31, 34 (104 SE2d 649). As an excise tax, it is imposed upon the performance of an act, the engagement in an occupation, the enjoyment of a privilege. Head v. Cigarette Sales Co., 188 Ga. 452, 457 (4 SE2d 203). In other words it is a transaction tax.
The transaction involved, by statutory definition, is the lease contract. The contract lists most of the services which Grantham will perform, such as selecting drivers, carrying insurance, paying penalties, making repairs, etc., and then says: “14. Any *873provision in the foregoing contract notwithstanding, carrier shall have exclusive possession, control and use of the motor vehicle involved.” Under the statute, the lessor who has so contracted is liable. There has been no novation of the contract, for the parties contemplated the performing of these services by Grantham in the first instance, and Grantham’s primary defense is that it is not liable for the tax because its contract is for the furnishing of services as to which the making available of the vans was merely incidental. The affidavits nowhere state that Grantham has exclusive control (which it must have to escape tax liability) but only that Grantham “maintained continuous supervision” and that “the care, custody and control of the equipment is vested in Grantham . . . subject only to the requirements of the Interstate Commerce Commission.” Ultimate control was reserved to the carriers under the lease agreement. That same lease agreement listed the services to be performed by Grantham upon which Grantham now relies to show that the carriers did not have control.
Grantham should collect the sales tax from the carriers and remit to the Revenue Commissioner. I consider it inequitable to allow the carriers to assert, for tax purposes, that they do not have control of the vans when the leases under which their rights and liabilities accrue reserve such control to them. Whether they choose to exercise it in fact or not is beside the point. So long as the provision is in the leases they may exercise it. It seems unduly generous to say that the carriers may reserve control in their leases, so as to meet Interstate Commerce Commission requirements, and then fail to exercise control and thereby relieve Grantham of the duty to collect and remit the sales tax.