I dissent.
In my view, the majority opinion of the Court of Appeal, prepared by Justice Sims and concurred in by Justice Molinari, correctly holds that the goods here in issue did not lose their constitutional immunity as imports merely because their importer employed a prearranged, bifold method of securing credit rather than more burdensome unitary financing. Accordingly, I adopt the opinion of Justice Sims as my own, with certain deletions and additions as hereafter indicated:1
[] [In Hooven & Allison Co. v. Evatt (1945) 324 U.S. 652 [89 L.Ed. 1252, 65 S.Ct. 870], the United States Supreme Court held that imported goods are entitled to the immunity of the constitutional provision even when their purchase is financed by a bank to which they are consigned as security. As the high court explained (at pp. 662-664 [89 L.Ed. at pp. 1262-1263]), “For the purpose of determining whether petitioner was the importer in the constitutional sense, it is immaterial whether the title to the merchandise imported vested in him who caused it to be brought to this country at the time of shipment or only after its arrival here. . . . For in determining the meaning and application of the constitutional provision, we are concerned with matters of substance, not of form. When the merchandise is brought from another country to this, the extent of its immunity from state taxation turns on the essential nature of the transaction, considered in the light of the constitutional purpose, and not on the formalities with which the importation is conducted or on the technical procedures by which it is effected. It is common knowledge to lawyers and businessmen that vast quantities of merchandise are annually imported into this country by purchasers resident here, for sale or manufacture here. Sometimes the buyer completes the purchase abroad, in person, and ships to this country; sometimes, as in this case, the purchase is on unsecured credit, but more often it is under contracts by which the vendor reserves in himself or his agent or a banker a lien or title as security for payment of the purchase price on or after arrival. To say that the purchaser is any the less an importer in the one case than in *171the others, is to ignore the constitutional purpose and substitute form for substance.” (Fn. omitted.)]
The declaration filed by the importing taxpayer states, in part, as follows:
“Halo Sales Corporation (hereinafter referred to as Halo) is a California Corporation whose principal business is the importation and sale of candles and related merchandise from Japan. Halo’s assets consist almost wholly of inventory and accounts receivable which are pledged to Walter E. Heller i& Company (hereinafter referred to as Heller) as Heller provides at all times approximately 80% of Halo’s working capital requirements. Halo’s business increases annually, so that its debt requirement ratio remains fairly constant.
“The cost of debt to Halo is a significant element of expense, and Halo accordingly seeks the lowest cost for its necessary continuing borrowings. On February 10, 1967, Halo and Heller contracted for the financing of Halo’s accounts receivable and inventory, and that contract is still in effect. In brief, Halo maintains a continuing debt to Heller of approximately 80% of its accounts receivable and inventory, and Halo pledges all of its accounts receivable, inventory, and other property to Heller as security for that debt.
“Halo imports candles from Japan under the following program:
“1. A letter of credit for the account of suppliers is opened by the United California Bank (hereinafter referred to as UCB);
“2. When the original shipping documents are received by UCB, it pays its foreign correspondent bank for the drawing on the letter of credit and charges that amount to Halo’s ‘advance account’;
“3. Original documents are forwarded to customs broker, Hoyt, Shepston & Sciaroni, and shipment is cleared through customs;
“4. Upon clearance from customs, the merchandise is delivered direct to Lawrence Warehouse, San Francisco, where warehouse receipts are prepared to the order of Walter E. Heller & Company;
“5. Upon delivery of the warehouse receipt to Heller, it pays UCB the amount charged to Halo’s ‘advance account’ corresponding to each individual shipment;
“6. Heller adds the amount paid to UCB to the balance of its continuing overall loan to Halo.”
The declaration signed by the president of the financing institution, *172Walter E. Heller & Company, states in part: “Heller does not generally provide letter of credit financing for the importation of goods from foreign countries because its charges for such financing exceeds charges of banks. In order to accommodate its customers, it cooperates with the major banking institutions which issue letters of credit in the regular course of their business. . . . Heller at all times during the importation process has a security interest in the goods themselves, subject to the prior security interest of the United California Bank. When the candles arrive at Lawrence Warehouse, warehouse receipts are issued to Heller and Heller, in turn, pays to the United California Bank the amount specified by Halo and becomes the holder of the first security interest in place of United California Bank.”
A declaration signed by a representative of United California Bank, the bank furnishing the letter of credit, recites: “UCB is familiar with the business of Halo Sales Corporation (hereinafter referred to as Halo) and provides letter of credit financing to Halo for Halo’s purchase and importation of candles from Japan. As a condition for the issuance of such letters of credit, UCB relies upon the lending agreements between Walter E. Heller & Company (hereinafter referred to as Heller) and Halo. A copy of the letter of credit agreement used by UCB and Halo is attached to this Declaration.
“In brief, UCB advances the purchase money to Halo which buys candles in Japan and imports them into the United States. By the terms of the letter of credit, the imported goods are at all times until payment therefor pledged to UCB as security for UCB loans to Halo. Payment is due to UCB when the goods arrive locally and are placed in a public warehouse.
“Halo’s imports are stored at Lawrence Warehouse, which in turn issues warehouse receipts to Heller. Heller pays UCB and is substituted for the bank as pledge-holder of the imported goods.”
A letter of agreement from Heller to UCB states: “. . . It is our intention to continue to lend money to [Halo] and to have a security interest in its accounts receivable and in its inventories after the inventories reach a Lawrence or other warehouse. It is your intention to continue to finance . . . [Halo’s] imports and to have a security interest in the merchandise which it imports prior to the time that such merchandise reaches such warehouse.” By this letter Heller subordinated any claims under its general security interest in Halo’s accounts receivable and inventory to any security interest of the bank in imported goods prior to the time that the goods reached a domestic warehouse. In return, the bank agreed to waive any claim to Halo’s accounts receivable or inventories, on or after the date the *173goods reached a domestic warehouse, subject to the following provision, “In the event, however, that prior to the time when any such merchandise reaches such warehouse you advise us in writing that an amount is owing to you with respect to such merchandise, then it is agreed that notwithstanding the foregoing, your security interest in such merchandise shall continue until we have paid directly to you the amount so specified by you, whereupon your security interest shall automatically terminate.”
The foregoing facts sustain the importer’s contention that the goods in question were constantly hypothecated, from the time of the contract under which they were purchased to and including the lien date, and that they would remain so until they were released for sale in the regular course of business by paying the amount of the purchase price for which they were hypothecated. The question is whether the shift of Heller’s security from subordinate to prime destroyed the character of the imported goods in the original packages so that they lost immunity from local taxation conferred by the import clause.
The trial court seized upon Heller’s statement that it was his intention to continue to lend money to Halo and to have a security interest in its accounts receivable and in its inventories after the inventories reach a Lawrence or other warehouse. The judge, in his memorandum opinion, concluded: “ ... it is apparent that the security agreement on the property, after it comes to rest is a different one than that in transit and this, in the opinion of the Court, brings the facts at Bar within the Calexico case.”
In the Calexico case it was recognized, however, that the creation of lien for storage, or for transportation into the United States, would not affect the status of the goods. The court said: “. . . if such a lien [for warehousing charges] did exist, it was purely incidental to the required storage and safekeeping of the property, and did not arise out of any beneficial use thereof as in the case of the pledge. Moreover, to hold that the incidental creation of such a lien extinguished the character of the property as an import would be to hold that the lien for the carriage charges of the carter who brought it across the line likewise extinguished its character as an import. Such a contention overlooks the intent and purpose back of the thing done.” (Southern Pac. Co. v. City of Calexico, supra, 288 F. 634, 642-643.)
An examination of the transaction in this case reveals no beneficial use of the imported goods by the importer. The shift in priority of the Heller lien was the result of a prearranged intent and purpose to facilitate the purchase and importation of the foreign goods, and as such should no more serve to destroy the tax immunity of those goods, than would the *174incurring of the liens for carriage and storage referred to in the Calexico case. In either case the burden of taxation on the goods would have the result of burdening foreign commerce in a manner proscribed by the United States Constitution as interpreted in B rown v. Maryland and the cases first cited herein.
It should be noted that the agreement between Heller and the importer provides for a general hypothecation of all accounts receivable and inventories, and that Heller obligates itself to lend up to 60 percent of the lower of the cost or market price of Halo’s inventories. Under this provision it could be argued that the imported goods, after the issuance of the warehouse receipts to Heller, stand hypothecated for more than their purchase price, and therefore furnish the importer a benefit in the form of an increased basis for credit, whether or not further advances are actually made. If such were the case the principle of Calexicoif valid, would apply.
Examination of the agreements reflects that no such benefits accrue to the importer. In the first place, it has already received 100 percent of the cost of the goods at the time the goods were shipped, so there is no obligation on Heller to lend more. Secondly, according to the agreement of the parties, unless the importer is in default, which he is not shown to be, he is entitled to withdraw the goods on paying 60 percent of their value, which in this case appears to be their cost. The importer can make no equitable disposition of the property, under the preexisting agreements, until he has paid off Heller. He has not acquired any beneficial use of the property other than as importer, since from the time this order is accepted until the tax date he was subject to the outstanding lien for the amount of the purchase price. The fact that he was able to obtain services, and a more favorable interest rate from the bank, while the goods were in transit by deferring Heller’s lien, should not render the pay-off of the bank an interruption of the importing process. Such an analysis exalts form above substance, and would merely serve to drive the importer to other forms of financing which would afford legitimate tax avoidance. Such steps might of themselves lessen local commerce if they resulted in foreign or out-of-state commitments for financing.
[As counsel for the City and County of San Francisco frankly conceded at oral argument, a ruling which deprives imported goods of their constitutional immunity when their purchase is financed as it was here will simply force the importer in the future to use a unitary method of obtaining credit, thereby incurring greater financing expenses. Those expenses, of course, will be passed on to the ultimate consumer in the form of higher prices. Accordingly, the tax here challenged will result in increasing the cost of *175goods to the interior solely because they are imports. This is precisely the evil which the constitutional provision was designed to prevent. (See Brown v. Maryland (1827) supra, 25 U.S. (12 Wheat.) 419, 440 [6 L.Ed. 678, 686]; Hooven & Allison Co. v. Evatt (1945) supra, 324 U.S. 652, 656 [89 L.Ed. 1252, 1258-1259].)] []
I would reverse the judgment with instructions to the trial court to enter judgment for the plaintiff taxpayer.
Peters, J., and Tobriner, J., concurred.
Brackets together, in this manner [], are used to indicate deletions from the opinion of the Court of Appeal; brackets enclosing material (other than the editor’s added parallel citations) are used to denote my additions to the text. (See Keizer v. Adams (1970) 2 Cal.3d 976, 978, fn. 1 [88 Cal.Rptr. 183, 471 P.2d 983].)