holding that the purchases of aircraft for resale qualified for the sale for resale exemption, even though the purchaser used the aircraft in its charter service and flight training school, because the airplanes “remained available for resale at all times.”
How later courts described this case
- holding that the purchases of aircraft for resale qualified for the sale for resale exemption, even though the purchaser used the aircraft in its charter service and flight training school, because the airplanes “remained available for resale at all times.”
- relied upon the purchaser’s primary use of the property as indicative of its purpose in determining whether the puchaser incurred sales tax on its acquisition of an aircraft
Written by the judges who cited it.
The opinion
Holmes, J.,
concurring in part and dissenting in part.
I am in agreement with the majority that as to the airplanes purchased or leased for charter and flight-training purposes there is no sale or transfer of possession within the meaning of R. C. 5739.01(B). Any transfer of possession for these purposes would have been incidental to the services rendered by the taxpayer.
However, I differ from the majority herein as to the planes which were claimed to have been purchased initially for resale, but because of their being in the inventory of taxpayer for some period of time were used in the flight-training service. I would agree that some minimal use of these airplanes which were shown to have been purchased for resale should not defeat the sales and use tax exceptions. But, here, the evidence shows that at least one plane which had been purchased in 1975 for resale was still being used in 1979 in the charter and flight-training services of the taxpayer. The original intent of the taxpayer is an important consideration, but may not stand up against strong evidence to the contrary. It appears that at least some of these plane purchases should be taxable.
I also differ with the majority herein relative to the tax upon the fuel used in the charter and flight-training services. It is my view that gasoline purchased by the taxpayer was for purposes of resale to its charter and flight-training cus *27 tomers. Even though the customers utilizing these services were not billed separately for the gasoline consumed, it may reasonably be assumed that the mileage to be traveled, and the gallonage of gasoline to be utilized in such travel, would have been calculated and the cost of such gasoline would have been incorporated into such billing. In my view, this constitutes a resale, and, therefore, the exception of R. C. 5739.01 (E)(1) should apply.
C. Brown, J., concurs in the foregoing concurring and dissenting opinion.