*1 Orchestra, Inc., Petitioner-Appellant-Cross-Respondent-Petitioner,
v. Department Wisconsin of Revenue, Respondent-Respondent-Cross-Appellant.
Supreme Court No. argument 2008AP1684. Oral December 5,May
Decided
For the argued by cause was III, F. Thomas Creeron assistant attorney general, with whom on the brief was J.B. Van attorney general. Hollen,
¶ 1. SHIRLEY ABRAHAMSON, S. C.J. This is a published appeals review of a reversing decision of the court of judgment of the Circuit Court for Dane County, Maryann Judge, remanding Sumi, affirming cause to the circuit court to enter an order Appeals decision of the Tax Commission.1 ¶ 2. The issue before court is whether the performed by sales of admissions concerts Symphony subject Milwaukee Orchestra are to Wis. 77.52(2)(a)2. (1995-96)2 § imposing percent Stat. a five gross receipts sales tax on of the "the sale of admissions to amusement, . . . entertainment recreational places events or . . . ." Orchestra, DOR, Inc. v. 2009 WI 69,
App
318 Wis. 2d
Orchestra 77.52(2)(a)2. § the concerts were because Stat. Wis. separately con primarily It events. entertainment to the Milwaukee the ticket sales cluded that to mu "admissions taxable as concerts were Orchestra § Tax performances" Admin. Code under Wis. sical 11.65(1)(a).3 the Commis- court concluded 4. The circuit basing on a decision on taxation its had erred
sion when and entertainment education distinction between 77.52(2)(a)2. "educa- use the word does not Wis. Stat. cre- Commission's declared the circuit court tion." *7 exception application taxation for from of an and ation interpretation of unreasonable activities an educational 77.52(2)(a)2. § to the Commis- the cause and remanded Commission that court stated The circuit sion. Sym- the Milwaukee that free to conclude would be phony entertainment are taxable concerts Orchestra's by applying that has test an educational not events, but in the statute. no basis judgment appeals The court of reversed gave appeals The court of court.
the circuit application interpretation of the stat- and Commission's weight held that and deference ute due interpretation is reason- the statute Commission's interpretation was more reasonable and that no able appeals affirmed therefore court of available. holding sales to the ticket Commission's Symphony sales of were concerts Orchestra in effect since 1978 been of the tax code has This section in this case. to the issues changes relevant with no admissions to "entertainment events" under Wis. Stat. 77.52(2)(a)2. § subject and to sales tax. appeals.
¶ 6. We affirm the decision of the court of give interpretation appli- We too the Commission's and weight cation of the statute due and deference conclude reasonably interpreted ap- the Commission and 77.52(2)(a)2. plied § Wis. Stat. We therefore conclude Symphony that the sales of admission to the Milwaukee Orchestra concerts were sales of admission to "enter- 77.52(2)(a)2. § tainment events" under Wis. Stat. subject to sales tax. ¶ 7. Because the Commission concluded that the provided independent statute a basis for its decision § from Wis. Admin. Code 11.65, Tax we need not parties' dispute regarding address the the rule in order to review the Commission's decision under the statute. agree approach We with this taken the court of appeals. Any § change review of Tax 11.65 would not the result of this case.
I dispute interpretation 8. The here is over the 77.52(2)(a)2. application of Wis. Stat. to undis- puted Findings facts. The Commission made 137 of Fact and the Milwaukee Orchestra does not take issue with them. The Milwaukee Orchestra's position is that the facts do not lead to the Commission's conclusion that the concerts are enter- *8 tainment events under the sales tax law. Department 1997, 9. In the Wisconsin of Rev- Symphony enue initiated a field audit of the Milwaukee period September Orchestra for the from 1, through August 31, noted, Unless otherwise we analyze describe and the facts established for that time period. Symphony Orchestra is a Milwaukee 10. The During symphony professional orchestra.
full-time, Symphony period, Orches- the Milwaukee relevant time begin- approximately employed The 90 musicians. tra ning salary approximately $50,000 the musicians was year, per unionized as Milwau- musicians were and the 8, the American Association, Local kee Musicians had of the musicians Musicians. Most Federation of conservatory degrees college music, in advanced Symphony from the Milwaukee most, for their income principal income for their source of Orchestra was the Symphony Orches- addition, In the Milwaukee families. employed in full-time 40 or more non-musicians tra management positions. The staff administrative and managed by Symphony Orchestra was Milwaukee consisting 60 members. of from 40 to of directors board Symphony has Orchestra ¶ 11. The Milwaukee corporation. not-for-profit incorporated It is as a been 501(c)(3) exempt tax under from federal income organization operated Code as an Internal Revenue purposes. exclusively The Milwaukee for educational Incorporation, as Articles of Orchestra's purpose: in state an educational restated organized Corporation is for which the purposes educational, other orches- present classical and degree of artis- music, highest performed with tral excellence, develop public apprecia- promote tic music, and to public in such of and to educate the tion purposes activity within the engage any other lawful Chap- may organized under corporations be for which statutes. ter 181 of the Wisconsin period, During year the audit each operating rev- Orchestra's total entirely to its of ticket sales almost enues consisted always the over- less than concerts, and revenues were *9 expenses all for those concerts. Even if the Milwaukee Symphony every every Orchestra sold ticket to concert, operating substantially overall revenues would be less expenses; than overall each concert would result in a expected operating financial loss. These deficits were by government offset charitable contributions and grants. years Symphony In some the Milwaukee Or- an chestra had overall deficit even after contributions. Symphony pre- ¶ 13. The Milwaukee Orchestra per year. presented sented 100to 150 concerts Most were in Milwaukee but some were elsewhere Wisconsin and only outside the state. This case involves those concerts presented Sym- in Wisconsin for which the Milwaukee phony public. prices Orchestra sold tickets to the Ticket changed varied from one concert to another and each year. Symphony The Milwaukee Orchestra set its ticket prices generally lower than those for commercial con- Symphony certs to broaden the Milwaukee Orchestra's Symphony audiences. The Milwaukee Orchestra offered discounts to full-time students and educators, children, citizens, senior and others. primarily categories 14. There were three (1) (2) Pops
concerts: concerts; Classical concerts; and (3) Symphony Youth concerts. The Milwaukee Orches- performed special tra also some concerts on dates such July, Christmas, as Fourth of and New Year's. primarily ¶ 15. The Classical concerts included repertoire. works from the traditional classical regularly Milwaukee Orchestra also com- original perform missioned works to at its concerts. Works were selected for the Classical concerts, accord- ing to the Milwaukee Orchestra, "balanc- ing [the Symphony Orchestra]'s educational primary purpose; likely mission and interest of its patrons budget . . . and considerations." *10 preceded by
¶ 16. Most Classical concerts were previews in conductor, musician, free or talks which a expert performed. or other discussed the music to be Symphony post- The Milwaukee Orchestra also offered approximately quarter concert talks for one Classical concerts. attending
¶ 17. Persons the Classical concerts re- Symphony program ceived Milwaukee Orchestra's advertising Encore, book, which contained as well as Symphony feature stories about the Milwaukee Orches- glossaries par- tra; of music terms and discussions of types profiles guest instruments; ticular of music and program artists; and notes about the music to be performed, including explanations sometimes from the composer as to the content of the music and what the convey. music was intended to By Symphony ¶ 18. the Milwaukee Orchestra's preceding estimation, own at attendance discussions averaged approximately 200, Classics Series concerts average while attendance for the concerts themselves Pops pre- post-concert 1,600. was over At concerts no offered, discussions were concert attendance aver- aged 1,800. over Pops "lighter
¶ 19. music, concerts featured mix- ing pieces lighter, usually orchestral with American typically performed symphony music," in full orchestra Symphony format. The Milwaukee Pops Orchestra used its encourage as concerts outreach to new ticket purchases Pops and conceded that some did concerts represent primary not its mission.4 DOR, Symphony v. Orchestra Docket No. (WTAC 2006) 98-S-130, 15, slip op. (Findings at 20-21 Dec. 74). 70, Fact Nos. included concerts The Youth concerts age group includ- aimed at a different series, each
three ing High concerts concerts, "Middle School" School (aimed targeting through grades each children in levels), grade pair "Kinderkonzerts," of these ages 3 to 8. directed at children Orchestra used 21. The Milwaukee develop partly to future classical concerts its Youth Symphony Orchestra col- The Milwaukee audiences. for these Youth tax on its ticket sales lected sales making prior its claim. The Milwau- refund concerts any not take resale ex- kee emption Orchestra did purchase orders from the certificates or students, rather than the schools, since individual *11 paid schools, the tickets. for High ¶ 22. School and Middle School concerts normally performed Symphony in the Milwaukee were sym- regular halls with the full concert Orchestra's phony The concert orchestra rather than schools. programs included works from the traditional classical appropriate repertoire, an overall theme connected to targeted age group. example, in the For 1994-96 for presented Symphony a series of Orchestra History High themed "American School concerts Through his- Music," which focused on United States tory through development and hu- of music manities. High Middle School concerts School and symphonic designed to
were to introduce students Symphony pre- Orchestra music, and the Milwaukee teaching program guides pared materials and for teach- attending be the concerts. ers whose classes would explanations about the These materials included some composers, background on the orchestra, materials thought questions suggestions for, to listen for of what explanatory discussion, and and other materials. These materials were available to teachers before the con- Any pre-concert teaching by certs. activities were done teachers, school not Milwaukee Orches- pre-requisite tra staff. Use of the materials was not a attending the concerts. designed
¶ 24. The Kinderkonzerts, to introduce generally presented music, children to classical were Performing the Marcus Center for Arts. mainly Kinderkonzerts consisted of works from the repertoire appropriate young classical for children, but many popular songs performed. children's were also organized Each Kinderkonzert was around a theme and play conducted in an interactive talk and format. The many pre-concert Kinderkonzerts also featured other "Petting (allowing activities, such as a Zoo" children onstage instruments), persons to touch dressed as coloring characters, children's clowns, dancers, and contests.
¶ 25. Families subscribed descriptions Kinderkonzerts received materials with composers, suggested music, instruments, parents activities for and children.
¶ 26. The Milwaukee Orchestra does argue any might not distinguished of these Youth concerts be primarily
from the Classical concerts as *12 primarily educational rather than as entertainment. Symphony Rather, the Milwaukee Orchestra has cho- argue sen to before the Commission and the court that primarily all of its concerts are educational and not primarily Symphony entertainment. The Milwaukee Pops stated, Orchestra's brief in relation to the con- practical separating certs, that "there is no method of "many Pops these from the other concerts" because offerings entirely mainly consist or of traditional clas- Pops in sold series."5 tickets are and most works
sical Symphony on relies Orchestra Milwaukee Because the primarily presenting as itself of the music the nature the concert between content, distinctions educational adequate supported. for record is not The not series are distinguish the Youth the court the Commission Youth con- sales for the admission and treat concerts subject primarily to the and not educational certs as tax. sales Department initiated of Revenue
¶ 27. After the Symphony filed Orchestra audit, the Milwaukee field its period. The for the audit tax returns sales amended Symphony tax returns Orchestra's amended had tax that it $719,456.69 for sales a refund of claimed including previously paid, all admission sales. tax on Department on the Milwaukee The acted together with its refund claim Orchestra's por- granted Department The audit assessment. field Symphony Orchestra's refund of the Milwaukee tion tax but denied sales in the amount $585.36 claim the remainder.6 Symphony Orches- In the Milwaukee Department's sought review of the the Commission's
tra abeyance, case in The held the decision. awaiting Commission Repertory Theater v. in Milwaukee the decision (Milwaukee Rep), Department Revenue Wisconsin (CCH) Rptr. ¶ 400-515 97-S-330, TaxWis. Docket No. Petitioner-Appellant-Cross- Appendix Brief (Milwaukee Orchestra) at 46 Respondent-Petitioner & n.138. Sym the Milwaukee Department of Revenue assessed $39,397.87 interest. in tax and an amount phony Orchestra calcu not contest the Symphony Orchestra does The Milwaukee from its amount; gross receipts if the agreed it lation of the assessment, taxable, plus Department's ticket sales are interest, correct. applicable
(WTAC 2000). four-day The Commission a conducted hearing present May contested case in the 4r-7, case on 2004, and its 16, issued Decision and Order on December 2006.
II ¶ 30. We review the Commission, decision judgment rather than the of the circuit court or the appeals, although decision of the court of we benefit analysis from the of those courts.7 agency's findings by ¶ 31. We review an of fact applying affording standard, a "substantial evidence" significant agency's findings. deference Substan- preponderance tial mean evidence does not of evi- considering dence. It whether, means after all the record, evidence reasonable minds could arrive at the weight "[T]he conclusion reached trier of fact.8 credibility agency, of the evidence are for the not reviewing agency's court, to determine."9 An find- ings may only of fact be set aside when a reasonable
7 88, DOR v. Menasha Corp., 46, 2008 311 WI Wis. 2d 579, 95; 754 Harley-Davidson, N.W.2d Racine Inc. v. Wis. Div. of n.4, Hearings 86, & Appeals, 549, 2006 WI 8 292 2dWis. 717 N.W.2d
"An appeals adverse decision of the tax commission is subject 227," provided review the manner in ch. Wis. Stat. 73.015(2), § County, before the circuit court for Dane Wis. Stat. 77.59(6)(b). DNR, Pages Hilton ex rel. Homeowners' Ass'n v. 2006 WI 84, 16, 25, 1, 293 Wis. 2d (quoted ¶¶ N.W.2d 166 source omitted).
9Hilton, Wis. 2d *14 all the them from not have reached trier of fact could including the available inferences it, evidence before from evidence.10 "interpretation agency's and
¶ contrast, an 32. In question application of law be a a to of statute is may, reviewing A court how- a determined court."11 interpretation agency's give an ever, deference to statute. agency's Granting
¶ on an 33. deference review comparative recognizes the insti- of law determination qualifications capabilities courts and and tutional agency's Granting agency.12 an statu- deference to the tory interpretation the court's own does not abdicate authority responsibility interpret statutes. Even and statutory granting agency's an inter- when pretation, deference to accept agency's inter- the court does the not eye. pretation itself must a critical The court without agency's interpret to determine the the statute whether only agency interpretation reasonable; is reasonable any interpretations given deference.13 ¶ 34. law has established three levels Our case granted agency interpretations, de- to be deference pending "great weight," "due on circumstances: weight," or "no deference."14
10Hilton, 1, 16, 25. 2dWis. ¶¶ Harley-Davidson, 292 2d 14. Racine Wis. ¶ 12Id. 13Id., 15.
14 Id., weight" "Great deference is warranted when (1) agency charged by legislature is admin- with (2) istering question; agency the statute in inter- (3) pretation long standing; agency employed is of specialized knowledge expertise interpreting its or (4) agency's interpretation statute; the provide uniformity will consistency application in the "great apply weight" the statute. When courts defer- agency's statutory interpretation ence, an reasonable will if he sustained even the court concludes that interpretation equally another reasonable even more reasonable.15 *15 give weight" lesser, Courts 36. "due deference agency charged by legislature
when the is the with experience enforcement the statute and has the developed expertise necessarily area, has but not places agency position in a better the than court the to interpret weight" applying the statute. Courts "due agency's statutory interpreta- an deference will sustain contrary meaning tion if it is not to the clear interpretation statute and no more reasonable exists.16 Applying weight" reviewing "due deference, a court will agency's interpretation not set aside the in favor of equally interpretation, another reasonable will but re- place interpretation it awith more reasonable if one exists.17 Reviewing give
¶ 37. courts no deference to an agency's statutory interpretation any the when fol-
15 Id., 16-17. ¶¶ 16 Id., 18. Id., ¶¶ (1) presents met: the issue lowing conditions (2) has expe- no agency first the impression; matter of issue presented; to legal rience or relevant expertise (3) so on the issue has been agency's position A court no real provide guidance.18 inconsistent as aof agency's interpretation an no deference to giving inter- agency's analysis from the but statute benefits agency's interpre- independent the statute prets an interpretation in effect adopts tation and interpretation.19 reasonable court the most determines Here, "due deference to the weight" we give 77.52(2)(a)2., § interpretation of Wis. Stat. Commission's circuit The did court. appeals as the court and adminis- charged interpreting is with Commission claims, adjudicating taxpayer tax code and tering the the first case in 73.01(4), § and this not Wis. Stat. has its expertise the Commission utilized which 77.52(2)(a)2. The interpret Wis. Stat. experience "entertainment has interpreted phrase Commission cases, in three which we previous events and places" later, one case with a fact including shall discuss recent similar to the case. substantially present situation interpretation therefore warrants some Commission's deference be inappro- deference.20 "Great would weight" *16 inter- here, however, because the Commission's priate places" events and under of "entertainment pretation 77.52(2)(a)2. in the cases § has evolved three Wis. Stat. years.21 over the last
18 Id., 19. ¶
19 Id., 20. ¶¶ 20 Id., 18. ¶ Department argued "great for appeals, At court of case, in here in its briefs weight" deference the instant but 39. We turn to the text of Wis. Stat. 77.52(2)(a)2. § and the Commission's interpretation of the statute application to the undisputed facts.
Ill 77.52(2)(a)2. § Wisconsin Stat. imposes a tax sales on "the sale of admissions to amusement, athletic, entertainment or recreational events or places." question posed the instant case is whether Milwaukee Symphony Orchestra concerts were "enter- tainment events or under places" Wis. Stat. 77.52(2)(a)2. § 41. The applicable portions of Wis. Stat. 77.52(2) added): are as follows (emphasis
(2) privilege For the of selling, performing or furnish- (a) ing the par. services described under at retail in this users, state to imposed consumers or a tax upon all persons selling, performing furnishing the services at gross the rate 5% the receipts sale, from the performance or furnishing of the services. (a) The imposed tax herein applies to the following types of services: amusement, athletic, The sale admissions to
entertainment or recreational places, sale, events or regular cards, rental or use of bingo cards, regular extra special bingo cards and bingo the sale of supplies to players dues, and the furnishing, for fees or other considerations, privilege of access to clubs or the privilege having amusement, access to or the use of entertainment, athletic or recreational devices or facili- argued weight deference"; for "at least due argument at oral Department agreed weight" that "due deference was warranted. *17 use of with the sale or in connection
ties, including, (32), in s. 707.02 as defined property, time-share on a facilities of recreational furnishing of use sale or including rights, recreational or other periodic basis rights, vacation services membership to but not limited memberships.22 and club analysis therefore on
¶ of our 42. The focus concerts Orchestra's the Milwaukee whether statute, as the under the events" are "entertainment does not to be. The statute held them Commission places." phrase events or "entertainment define interpretation the Commission's We review 77.52(2)(a)2. § application under Stat. of Wis. and weight whether to determine standard deference due apply interpreting to to sales of tickets to the statute is a reason- Orchestra concerts application interpretation of the statute and able interpretation is available. a more reasonable whether interpre- the Commission's first examine We appli- the Commission's and then tation of the statute undisputed interpretation facts. of its cation interpreted phrase has 45. The Commission 77.52(2)(a)2. § in Wis. Stat. event" "entertainment do not exemptions that provision provides tax separate A apply here. 77.54(9) exempts: §
Wisconsin Stat. public and receipts admissions to gross from sales of tickets or The activities, secondary elementary school where private educational, expended reli- proceeds for entire net therefrom purposes. gious or charitable 77.54(9a)(f) exempts: Stat. Wisconsin (9a) gross receipts . from sales to .. (f) fund, community any corporation, or associa- chest foundation charitable, exclusively religious, operated organized for
tion added). (emphasis purposes ... or educational scientific *18 "primarily" entertaining. mean an event that is More specifically, "pri- the Commission has determined that marily" percent means more than 50 and that an event percent subject that is 50 or more entertainment 77.52(2)(a)2. § sales tax under developed ¶ 46. The Commission has this inter- pretation phrase of the "entertainment events" under 77.52(2)(a)2. § prior Wis. Stat. in three cases.
¶ in First, 1986, 47. the Commission decided in Department Historic Sites Foundation v. Wisconsin (CCH) Rptr. Revenue, S-10066, Docket No. Wis. Tax (WTAC 1986), ¶ 202-662, 12,793 at 21, Jan. that sales of admissions to the Circus World Museum in Baraboo 77.52(2)(a)2. § were not taxable under Wis. Stat. be- [Circus Museum] place cause "the World was not a amusement, events[,] athletic entertainment or recre- ,"23 ation . . .
¶ key 48. The Historic Sites case established two principles subsequent interpretation that underlie the 77.52(2)(a)2. application § of Wis. Stat. adopted "primary One, the Commission (later objective" "primary purpose" test stated as the test) determining place for whether the event or was purposes. Recognizing "entertainment" for sales tax "many [Circus that of the activities of the World Mu- amusing seum] entertaining as well as educa- DOR, Historic S-10066, Sites Found. v. Docket No. Wis. (CCH) (WTAC 1986). Rptr. 202-662, 12,795 Tax 21, Jan.
We note that since the Commission decided the Historic case, Sites admissions to the Circus World Museum have been exempt made from sales and use tax under ch. III subch. (as 77.54(10) the Wisconsin § Statutes. See Wis. Stat. amended 29, 1490m); § 85 Wis. Act see also Wis. Admin Code Tax 11.65(2)(b). rejected in Sites Historic tional," the Commission entertaining aspect any argument Department's Instead, the Com- taxable.24 admissions make would interpretation objective' 'primary held that "the mission 77.52(2)(a)2.[ considering ] be utilized should of sec. Museum's] taxability [the fees."25 admission analy- formulated its Commission Two, the degree or 'amusement' to which "in sis terms objective opposed 'education,' is an 'entertainment,' as charging This place for entrance."26 admission of a analysis implied place event has "education" if a *19 objective," "primary have "entertain- it cannot as its objective. primary its ment" as made the Commission ¶ in Historic Sites 51. Thus appearing meaning in the "education," not a word the of 77.52(2)(a)2., disposi- potentially § a Stat. text of Wis. applying The Milwaukee in the statute. factor tive argues are that their concerts Orchestra not "entertainment." and therefore "educational" applying case Wis. ¶ Commission 52. The second 77.52(2)(a)2. Experimental Aircraft involved Stat. Experimental v. Association In Association.27 Aircraft Department S-8921, Revenue, Docket Nos. Wisconsin of (CCH) Rptr. ¶ 202-802, at S-8922, S-8923, Wis. Tax (WTAC 1986), made the Commission 21, Jan. 12,823 simply findings concluded as fact and then numerous (CCH) 202-662, Sites, at Historic Rptr. Tax Wis. 12,793.
25 Id.
26 Id. DOR, S-8921, v. Experimental Ass'n Docket Nos. Aircraft (CCH) 202-802, 12,823 S-8922, S-8923, Rptr. Tax Wis. part in on other (WTAC part and rev'd 1986), 21, Jan. aff'd Found., 2d DOR v. EAA Aviation 143 Wis. grounds, 1988). (Ct. App. N.W.2d 458 decision) (without memorandum of law a
a matter week-long public to the area at the the admission fees subject Fly-In not to sales aviation event were Oshkosh analysis The continued the articulated tax. Commission primary "[t]he finding Sites, fact that in Historic as a fly-in people purpose is to educate about... provide pleasurable rather than to aviation... judicial agreeable review, diversion."28On the circuit implicit "primary pur- upheld the Commission's court necessary analysis, holding pose" "proper it for degree to determine what level or Commission amusement, entertainment, or recreational value" the agreeing primary purpose of has, and that "the event fly-in to educate."29 Experimental ¶ 53. The Association case Aircraft analysis "primary pur- applied and extended (or objective") pose" "primary and the be- distinction primarily educational events and events tween entertainment, amusement, or recreation. aimed at case, Commission the most recent third directly here, the most relevant was Repertory in Milwaukee Commission's 2000 decision Department Theater, Revenue Inc. v. Wisconsin *20 (Milwaukee Rptr. Rep), Tax 97-S-330, Docket No. Wis. 2000). (CCH) (WTAC ¶ 31,979 15, The 400-515, at Dec. to the Commission determined that sales of admissions performances Repertory sales Theater's were Milwaukee of admissions to "amusement or entertainment events" 77.52(2)(a)2. subject The to sales tax under Wis. Stat. 28 Id. at 12,829. 29 (CCH) Found., v. EAA DOR Aviation Rptr. Wis. Tax (Dane 22, Ct., 86CV882, 86CV891, Cir. Nos. Oct. 202-802 Co.
¶ 1986) (emphasis original). in Rep present reaffirmed Milwaukee in the Commission Rep case and concluded that the Milwaukee decision was controlling here. Rep
¶ The in Commission's decision Milwaukee distinguished performances the theater from the events the in at Circus World Museum Historic Sites and the fly-in Experimental event Association. Aircraft rejected argument
¶ 56. The Commission the primary objective Repertory if the the of Milwaukee educational, Theater sales of admissions the was performances Referring not were taxable. to the lan- guage dictionary statute, the Commission cited (as synonym "entertainment," definitions of of "amuse" "entertain"), concluding "recreation," and of "[e]ven [the Repertory if education was Milwaukee primary objective producer Theater's] shows, as of the overriding advertising promotion thrust of its and objective public shows, as well as the obvious responded by buying tickets, who was 'entertain- ment,' 'amusement,' 'recreation' as those terms and/or commonly understood and defined."30 spite The Commission observed that "in itsof worthy Repertory [Milwaukee mission, educational The- sophisticated ater] non-profit is a mercantile enter- prise engaged advertising ... in extensive commercial promotion performances."31 of its (Milwaukee Theater, Repertory Milwaukee Inc. v. DOR (CCH) 97-S-330, Rep), Rptr. 400-515, Docket No. TaxWis. at (WTAC 2000). 31,982 Dec. scope advertising and content of the Theater's were part a central analysis. Commission's The Commission Repertory advertising found that Milwaukee Theater's "own marketing performances describe and even tout ... as (CCH) entertaining." Rep, Rptr. Tax Wis. 400-515, 31,980-81. *21 in ¶ The Commission also noted Milwaukee advertising Rep "understandable be- that such was Theater] Repertory compete [Milwaukee must cause ... public discretionary in the entertainment dollar for the marketplace."32 Rep ¶ in Milwaukee the Commission short, In advertising, marketing, promotion, the mis- examined company, specific facts and other sion of the theater together, performances which, taken estab- the about disputed performances." From of the lished "the nature concluded that the theater facts the Commission these performances and that the entertainment events were performances the theater were of admission to sales subject 77.52(2)(a)2. sales tax under Wis. Stat. to ¶ in the Commis- 60. Both this court before argued Symphony has sion, Milwaukee Orchestra analysis Rep in Milwaukee is inconsistent with that the analysis in Historic Sites. The Milwaukee on "the reasons that Historic Sites focused Orchestra characterizing charging objective place admission," of a only way realistic to formulate issue."33 that as "the according Rep, hand, to Milwaukee on the other greater weight gave Orchestra, Milwaukee objective response public" in "the obvious advertising promo- Repertory Theater's Milwaukee circum- so far as to state that tion, and went "[t]he mission and case, educational stances of objective producer, Repertory [Milwaukee stated Theater], are irrelevant."34 (CCH) 400-515, Rep, Wis. Tax Rptr. at Milwaukee
31.982. (CCH) Sites, 202-662, Historic Rptr. Tax Wis. 12,796. (CCH) 400-515, at Rep, Rptr. Tax Wis.
31.982. *22 Responding
¶ 61. to the Milwaukee arguments, in Orchestra's the Commission's decision present attempted reach, of the case as the court appeals explained, reading "a reasonable and coherent prior three decisions."35 Commission ex- plained synthesizing prior cases, it is clear objec- including sponsor's factors, that all relevant tives, event, the characteristics of the and the motivations, audience's are to be considered. present ¶ case, 62. In the the Commission articu- approach question lated a sensible to the difficult adjudicative body "primary an should how elucidate the purpose" potentially of an event as multi-faceted as a symphony performance. orchestra The Commission ex- plained only "[t]he approach better is to look not purpose sponsor the motivation or .. . but also at the nature of the event itself and the audience's moti- attending, to, vation in and its reaction the event. Of invariably course, these three considerations will over- lap, piece advertising, may evidence, and one such as provide insight into all three considerations."36 approach
¶ 63. The Commission's stated is realis- tic and reasonable. It would be less reasonable to require narrowly scrutinizing only test, focused sponsoring organization's objectives, stated or to make any controlling range one factor across whole 77.52(2)(a)2. places events and in which Wis. Stat. applies. agree sponsor's We with the Commission that "a purpose, statements that its events an have educational might Rep, as in Milwaukee be undermined other Symphony Orchestra, Milwaukee 261, 318 Wis. 2d 21. DOR, v. Orchestra Docket No. (WTAC 2006). 98-S-130, slip op. at 55-56 Dec. interpretive approach the The broader ... ."37 evidence reli- exclusive will avoid has articulated Commission sponsoring easily manipulated test of a on the ance purposes. organization's stated appli- interpretation and The Commission's is reasonable and in the instant case the statute cation of analysis in three of the statute our own consistent with key regards. "pri- to maintain First, it makes sense analysis.
mary purpose" for determin- Even if the factors *23 purpose" ing "primary of with the context have varied principle of a cases, the basic of the Commission's each objective" purpose" "primary "primary been con- has or in 1986. Sites was decided since Historic sistent provides interpretation long-standing ¶ This 66. meaningful guidance taxpayers inter- and is a sound to Sym- pretation Indeed, the Milwaukee statute. "primary urges phony us to maintain Orchestra itself any aspect analysis, purpose" entertainment if since taxable, then admissions to make concert sufficient were admis- concerts Orchestra's the Milwaukee certainly be taxable. would sions interpretations no more rea- ¶ Alternative 67. Department Specifically, that the the standard sonable. (and rejected) in the the Commission had advocated any degree have made case would Historic Sites require an tax. Such sales sufficient entertainment scope expand greatly interpretation of events would taxable as "entertainment." may although purpose primary be Second, 68. accepted long quantify, if the it has been
hard to primary percent place purpose or is 50 of an event or recre- athletic, entertainment "amusement, more Id. place ational," then admission to the event or is taxable provision under this of the statute. Notably, previously the statute made tax- places able amusement, "admissions to athletic enter- places,"
tainment or recreational events or Stat. Wis. 77.52(2)(a)2. (1975) added). (emphasis legislature language by amended this 1977 Wis. Act which adopted language place that remains in to the present, taxing "admissions amusement, athletic, places." By entertainment or recreational events or eliminating phrase "places the stand-alone of amuse- adding ment" and a comma between "athletic" and legislature "entertainment," the made clear that admis- places" sions to "entertainment. . . events or constitute category. change a distinct, taxable This broadened the considerably by clearly going reach of the statute be- yond legisla- entertainment," "athletic and indicates a tive intent to tax a more diverse set of events. The interpretation Commission's that admission to the Mil- waukee Orchestra's concerts are taxable as statutory change. entertainment is consistent with the interpretation 70. We therefore maintain the *24 taxpayer prove percent that a must that the event is something or more other than "amusement, athletic, entertainment or recreational" to avoid sales tax. The argument present briefs and in the case are focused on primary purpose whether the of the concerts is "educa- tional," rather than "entertainment."
¶ purpose only 71. An "educational" is not the possible may, alternative to "entertainment." An event example, religious purpose for have a charitable or as primary purpose. its not, We however, need articulate possible antonyms an exhaustive list of all to "enter- adjectives purposes other or all that describe tainment" statutory language to this in order decide outside case. ap-
¶ Third, 72. the Commission's multi-factor "primary purpose" identifying proach reason- to is way identify any to more reasonable able, and we do not question interpret The howof to discern the statute. "primary purpose" place of a or event in adminis- judicial especially one, for trative or review an elusive as as as the statute must address and events diverse here. concerts at issue multi-faceted as orchestra open-ended question proper approach to such an overly not be narrow or formalistic. should unsurprising ¶ 73. both reasonable and It is weight had different observe that different factors have undertakings as the Commission's evaluation Mu- from one another the Circus World different as fly-in, seum, the theater and orchestra Oshkosh performances. empha- Sites, In Historic the Commission pre- commitment
sized the Circus World Museum's historically senting information and accurate historic This led the and reenactments.38 focus demonstrations pri- that the Museum's Commission to conclusion mary purpose than entertain- educational, was rather ment. Experimental Association In the Aircraft among findings emphasized,
case, the extensive of fact advertising, many public factors, the lack of with other technologies range aviation both historic and new (CCH) Sites, 202-662, at See Historic Rptr. Wis. Tax 12,796. *25 display, public
on the differences between the area and grounds, types the other areas of the and the different paid.39 of fees Rep,
¶ 76. In Milwaukee the Commission viewed promotional advertising appar- materials and the highly ent motivations of the audience members as probative primary purpose plays that the of the was though entertainment, amusement, recreation, even sponsoring organization an avowed educational mission.40
¶ 77. The Commission's decision in the instant Rep. Although case clarified its decision Milwaukee language Rep suggested in the Milwaukee case that "the objective pro- educational mission and stated of the [Milwaukee Repertory ducer, Theater], are irrel- language properly evant,"41this "irrelevant" read to Repertory mean that the Milwaukee Theater's stated objective controlling mission and were not over the specific particularly facts case, of that the Theater's marketing practices, which the Commission found "ac- knowledge [d] entertaining perfor- nature of the mances."42 Rep say, 78. Milwaukee does not and does not objective
mean, sponsoring the mission and of the organization never relevant. Rather, Rep Commission's decision in Milwaukee stands for the proposition spite sponsoring organization's that in Experimental Ass'n, See (CCH) Rptr. Wis. Tax Aircraft 202-672, 12,824-12,825, at 12,827-12,828. See (CCH) Rep, Rptr. 400-515, Wis. Tax 31,982.
41 Id.
42 Id. *26 objective, specific espoused or other mission institutional primary purpose may of an that the demonstrate facts charged is, fact, enter- in for which admission is event cases, In the amusement, such tainment, or recreation. may organization objective sponsoring the or of mission under determination to the ultimate "irrelevant" become the statute. materially depart Rep
¶ not Milwaukee did 79. prior The decisions. Commission's the Commission from Rep case the Milwaukee in instant clarified decision the distinguished explicitly Sites the Historic and decision ap- Commission's do not read the and EAA cases. We Rep proach the inconsistent with to be very prior factual that different decisions addressed situations. persuaded interpre-
¶ sum, are the In we adopted by in the the Commission the tation of statute no reasonable case and that more instant is reasonable uphold interpretation presented. the therefore is We statutory interpretation. Commission's to Milwau- of the 81. Whether sales admissions subject to sales Orchestra concerts kee 77.52(2)(a)2. depends § on the under Stat. tax Wis. is "primary purpose" to which admission event primary purpose charged. ais The determination mission, or motivation, one, looks to the holistic which any organization, sponsoring purpose as as well of the paying of those and reaction of the motivation evidence ultimately place the nature admission possible. inquiry formulaic event itself. No may inquiry areas in other described is akin to what be assessing "totality the circumstances." of law as consider We now the Commission's applica- 77.52(2) (a)2. tion of its of Wis. interpretation Stat. undisputed facts instant case. 83. The Commission considered the extensive evidence presented concluded the concert performances primarily were entertainment. This con- clusion is a reasonable one based on record. The court of appeals summarized well record and the *27 Commission's conclusion: recognized
The learning commission that and an aes- experience thetic of component attending was the concert many, for that the artistically music was excel- lent, and that Milwaukee Symphony [the Orchestra's] current mission statement and certain activities were educating directed at public the on music so as to develop greater appreciation However, of it. there was also much [the evidence that Symphony Milwaukee Orchestra] and the attendees the viewed concerts as a form of entertainment and the commission was reason- ably persuaded primary this that was the characteristic of the the standpoint, event—from audiences' from the marketing advertising Sym- [the Milwaukee Orchestra], phony and from the of the ñatee concerts themselves.
The also commission considered the evidence of the optional pre-concert post-concert lectures for some concerts and written the materials offered to concert- goers regarding performed the music at some concerts. It ways concluded these providing information about the did music not transform the concerts into primarily educational events. We are satisfied that these are they conclusions reasonable because are based on the evidence and focus on the concerts them- selves, which the events for which tickets are it is not more reasonable We are also satisfied that sold. analysis music, expert's taken to conclude that an regarding materials together the educational with concertgoers, to the make music made available themselves educational primarily events.43 concerts Symphony Orchestra does 84. The Milwaukee determinations, Commission's factual not contest the adequately supported by evidence are more than which Considering facts, and the record in the record. those persuaded that us, we are Commission before reasonably applied interpretation of the statute to its primary purpose of the Milwaukee determine that Symphony concerts was entertainment. Orchestra prin-
¶ 85. Milwaukee Orchestra's argument primary purpose cipal of its charitable, than for rather concerts was educational The Com- entertainment, amusement, or recreation. dictionary several definitions mission considered "education."44 con- Orchestra 86. The primary purpose that the
tends that the evidence shows defini- within these their concerts was educational *28 43 261, Orchestra, 318 2d Wis. 25-26. ¶¶ DOR, v. Docket No. Symphony Orchestra See Milwaukee (WTAC 2006). 15, 98-S-130, slip Dec. op. at 57-58 Dictionary, Heritage cited The American
The Commission (1991), College Editions for these definitions: Second being educating educated. process act of or 1. The or by learning developed knowledge a The or skill obtained or process. cited Third Interna also New Commission Webster's (1981), follows: unabridged, as Dictionary, tional educating being process educated. A. The act or of or and that a tions consensus exists the law and in that the Milwaukee society Symphony Orchestra organizations the other fine arts or educational charitable institutions.45 It emphasis statutory bears that text
itself does not use the word "education." The controlling question whether the Milwaukee Orchestra's concerts had "enter- primary purpose of tainment," "amusement," or "recreation." of Exposition the "educational" of the concerts is relevant aspects only as a means of potentially proving the "primary not of the concerts purpose" "entertainment," was "amusement," or "recreation." process providing knowledge, skill, compe- B. The act or of with qualities being .... tence Desirable of behavior or character or of so
provided esp. by study, training. a formal course of instruction or process instruction, learning, training 2a. A or of course or esp. or is to educates intended educate... a formal course training by instruction or offered an institution. 45Based on arguments, Sym its overall the Milwaukee phony Orchestra much implicitly advances a broader definition “education”, of the word more akin recognition IRS's contributions tax-exempt classical music orchestras as as serving purposes.” Service, “educational The Internal Revenue Memorandum, Solicitor's 1919-1 C.B. WL (1919), explained: school, meaning "Educational" is not in its used of instruction college, university, meaning which is a or more narrower limited signification of the word... but in its broader as the act developing cultivating physical, the various intellectual and improvement body, mind,
moral faculties toward the and the heart. given by That the instruction in music a musical association is conveyed in pleasurable such a manner as negative to be does not the fact that such instruction is educational. *29 102 highlighted the Milwaukee The Commission 88. Incorporation Symphony from Articles of Orchestra's (the Symphony "pri- Orchestra's 1976 Milwaukee both organize mary purpose[s]" maintain and "to and are present perfor- symphony and orchestra conduct by the cultiva- to further the said orchestra... mances Music....") appreciation art of and 1988 and tion ("The organized Corporation purposes for which present orchestral educational, to classical and other highest degree performed of artistic music, with the developpublic promote appreciation of excellence,to .").46 public How- in such music ... to educate the "[o]nly of found a few ever, the Commission also Sym- [the many expressing documents Milwaukee the phony any Orchestra's] purpose form of or mission use except words, and, for educate or similar the word always Incorporation], [1988 Articles of term was educating people in the art of in the context of used music."47 finan- The Orchestra's Milwaukee years question analysis that annu- showed
cial of ranged expenses from education and outreach alized per year, percent 2.5 $310,000 1.24 $147,000 to 48 percentage percent total as a revenue separately analyzed each Commission type then that none concert offered and concluded primarily None was an educational was them event. no institution; there was an educational offered or structured instructional course of instruction formal 46 DOR, Docket No. v. Orchestra slip (WTAC 15, 2006) (Findings of Fact 98-S-130, Dec. op. at 3-4 7). Nos. 47 8). No. (Finding Id. at of Fact 39). (Finding Fact No. Id. at *30 curriculum and no direct or concrete correlation be- attending learning; tween the concert and attendance part process training; was not knowledge of a and no skill or developed by taking
such as that music les- necessarily imparted by attending sons was concerts. ¶ 91. The Commission concluded that if even some educational values flowed from the Milwaukee Symphony Orchestra's concerts, those values would be classify primarily insufficient to the concerts as educa- [the tional. "It Symphony is not clear what Milwaukee Orchestra] taught claims was at its concerts or learned by attending [the its concerts. To the extent Milwaukee Symphony arguing Orchestra] by attending that one of its concerts, one becomes more educated in the sense becoming more familiar itself, with music rejected must be because that same statement could be ,"49 any made about event. . . years
¶ 92. Over the fiscal issue, the Commis- Symphony sion found that the Milwaukee Orchestra's expenses promotion," combined for "sales and "media "marketing" ranged activities," and from $1.2 $1.6 per year.50 million
¶ 93. The findings Commission made extensive Symphony about the marketing Milwaukee Orchestra's activities and advertisements.51 The content of the Symphony advertising pro- Orchestra's amply motional communications demonstrates that even if the Milwaukee Orchestra did not primarily view its concerts as "entertainment," it at potential ticket-buyers least wanted to view them as such.
49 Id. at 58. 95). Id. at 26 (Finding of Fact No. Id. at 26-35 (Findings of Fact Nos. 95-125). promotional advertising and Some also to the Commission exhibits as materials submitted background and informa- brief summaries contain However, the Mil- or musicians. the music tion about any not identified has Orchestra waukee promotional public that de- material advertisement prom- "educational," as themselves the concerts scribes suggest descriptions "learning," other or offers ises *31 purpose. an overall educational promotional materials ¶ and Advertisements 95. phrases "exhila- such as included concerts Classical for rating thrilling energy"; soothing "an sounds, music, evening delightful entertainment"; and "a wonderful symphony!"52 time at the Similarly, found that adver-
¶ Commission Pops promotional various materials for and tisements per- program special highlighting a concerts, often "light "bubbly promised hits," time," "a fabulous former, popular sing-along of fun-filled favorites," "a classical "top- yodeler"; songs foremost . led the world's . . capital awith entertainment"; "Entertainment notch many and entertainment-themed other similar E!" phrases.53 Symphony mar- Orchestra Milwaukee 97. The describing materials with Kinderkonzerts
keted the your family," "entertaining Fun for Your Whole "Musical advertising Family!" activities the themed as as well spectacle and phrases of the circus" such as "the with extravaganza."54 holiday "enjoy the Symphony con- Orchestra The Milwaukee reasoning findings and Commission's that tends 114). 109, 113, Fact Nos. Id. at 30-31 (Findings of 115-123). Fact Nos. Id. at 31-33 (Findings of 124-125). (Findings of Fact Nos. Id. 34-35 by "cherry heavily advertising relied too on picking" phrases disproportion- entertainment-related ately advertising, from the the Commission mischarac- terizéd the as a nature concerts whole and the particular. disagree "Classics"series in We concerts with Symphony the Milwaukee Orchestra. Rep,
¶ 99. true in As was Milwaukee the "overrid- ing Symphony thrust" of the Milwaukee Orchestra's advertising, promotional as materials, as its sales well press public pro- releases, materials, and other was to mote its concerts as entertainment events. The Milwau- Symphony only tiny kee Orchestra identifies fraction promotional promot- its that, materials in addition to ing the entertainment, concerts as can also be con- promote purpose. strued to an educational Symphony 100. The Milwaukee Orchestra nev- argues advertising provides only ertheless "indirect" evidence of the actual characteristics of the Orchestra's concerts. The Mil- urges weigh waukee Orchestra the court to rely heavily other evidence more on two sources *32 (1) particular: testimony given before the Commission (2) by expert Greenberg; survey their witness, Dr. and by of audience motivations the conducted American Symphony League Orchestra in 2000-01. Symphony
¶ 101. The Milwaukee ex- Orchestra's pert Greenberg, witness, Dr. indeed testified he that disagreed Department's position with the that the Mil- Symphony primarily waukee Orchestra concerts are opined events amusement or entertainment. He that going on, "there a level of amusement, entertainment by primary impulse, primary far but the the event that's going on in these concerts is an educational and infor- impulse." Greenberg experi- mative Dr. described the (Beethoven's listening piece ence one to "Eroica") "profoundly major, "The as in E-flat 3No. educating... profoundly most and instructive ways." important sorts and basic by expert persuaded this testi- We are not mony It is the decision. the Commission's to set aside persuasiveness and determine the role to Commission's testimony weight and before to the evidence to accord expert's testi- that the Commission concluded it. The primarily mony but educational itself was indeed would, audience members no evidence that there was any privy attending by of the concerts, to become post- pre- expert The and discussed. information part them- the concerts not concert lectures were publication a small contained Encore and the selves pieces themselves and information about amount of reading. optional was it other also had before The Commission testimony. instance, the Milwaukee For and
evidence Symphony principal violinist testified Orchestra's own Another instructional." were "not the concerts symphony numerous with witness, has worked who organizations, performing arts and orchestras other opined educational there were both that while symphony concerts, the enter- entertainment values percent. at least 80 tainment factor was regard materials the educational 104. With indicate does not concerts, the record the Youth for parents, percentage schools, or audience what optional materials. The Commission members used the did, Milwaukee if all of them determined that even Symphony transform did not materials Orchestra primarily events. educational into themselves concerts any, teaching if was not conducted instruction, The Commis- Orchestra. the Milwaukee *33 degree con- the children's to some sion concluded certs were a marketing technique develop future audiences, since the Milwaukee Symphony Orchestra that children thought must be exposed classical music before 14 to age establish an interest in attending classical concerts as adults.55 105. The Milwaukee Orchestra does not argue that of the any Youth concerts are distin- from guishable concerts, the Classical which also have 55The concludes that the Youth con concurrence/dissent certs primarily are not entertainment within the meaning of 77.52(2)(a)2. Wis. Stat. by unfairly It challenging does so two or three of the Commission's findings by of fact and considering only parts those of the record support its conclusions, rather than considering the entire record. See at ¶¶ 157-158. concurrence/dissent example, For the Commission found that the audiences were never they asked about what learned. The finding attacks this on the basis of nine concurrence/dissent response questionnaires letters and returned in the record (Exhibit 39) submitted following various events from 1993 to sampling Because this apparently is small and self- selected, evidentiary its Moreover, value is not obvious. questionnaires did they not ask the teachers what learned or what their students learned. responses brief, The teachers' variously praising programs preparatory materials, criticizing them age as "not appropriate," emphasizing the positive response students, or suggesting that a more multi- program cultural curricularly would be "more appropriate." The (and comments) responses teachers' a few student also describe the concerts as entertaining and fun. A few older students emphasized the educational and aspects "informative" of the concerts, while one grade provided fourth class comments including "very pretty" and a comment from a student who "enjoyed sitting looking doing there nothing listening." but In short, from the limited presented, evidence no one character- ization programs compelled. materials is Moreover, the not does reexamine all of concurrence/dissent findings relating of fact to the Youth concerts that *34 Rather, Milwaukee materials. the educational available chosen to present has instead Orchestra Symphony and an to this court a record and the Commission Symphony the Milwaukee that all argument entertainment. are not primarily Orchestra's concerts indicates Orchestra's brief The concert series to concert or each each examining or primarily if it is entertainment primarily determine Sym- The Milwaukee else is something impractical. "many Pops states that because Orchestra's brief phony the Commission's and fails to consider Commission considered Sym- relates to the Milwaukee definition of "education" as it phony. 137) (¶ only perspec- at the looks concurrence/dissent perspective of the Milwaukee and
tive to determine their to the concerts educators who took classes Yet, primarily entertainment. the Youth concerts are whether (whose statutory interpretation is according to the Commission deference), the determination of whether weight due accorded narrowly not a primarily entertainment the concerts are controlling factor. The determination any one focused test with factors, including the motivation on numerous depends event, the audience's motivation sponsor, the nature of the event. attending, audience's reaction to the and the observes, correctly, edu- also The concurrence/dissent families, to teachers were made available cational materials made avail- The materials were not although only request. on optional, and Using these materials was to the students. able families, symphony not to teachers and their use was left to to render Thus, if materials were essential staff. entertainment, record than educational rather concerts of the materials. extent of the use does not indicate the tapes, materials Moreover, exception of cassette these with the charge. very materials free of Thus the provided were probative finds most activities which concurrence/dissent tax for which no sales nature are those the concerts' educational money paid. no was charged because could be offerings entirely mainly consist of traditional clas- Pops series," sical works and most tickets are sold in practical separating therefore "there is no method of agree these from the other concerts."56 We with the Commission that on the basis of this record the three types of Youth concerts should be treated the same as prima- the Classical concerts and should be treated as *35 rily entertaining subject events to the sales tax. Symphony
¶ 106. The Milwaukee Orchestra also survey on relies of the audience motivations of symphony-goers, Sym- conducted the American phony League. survey question Orchestra One asked respondents to review 13 statements and to rate on a (low) (high) scale 1of to 5 how each described their experience. Seventy-eight percent usual concert of cur- gave ranking rent subscribers a "5" or "4" to the state- experience ment: "The classical orchestra is an educa- learning experience." tional and continual survey ¶ 107. The was conducted after the audit period, Symphony did not include the Milwaukee Or- question posed chestra, and did not ask the under the survey questions compare statute at issue. The did not the relative educational and entertainment values of symphony questions concerts, fact asked no that any used variant "entertainment," of the word which is statutory interpretation focus our here. Symphony ¶ 108. The Milwaukee Orchestra's surveys own referred to its concerts as entertainment questions and asked no about their educational value. Finally, Symphony ¶ 109. the Milwaukee Orches- argues imposing tra sales tax on their concert 56Brief Appendix of Petitioner-Appellant-Cross- (Milwaukee Orchestra) Respondent-Petitioner Symphony 45-46. give
tickets conflicts with other tax laws that favorable treatment along to the Milwaukee Orchestra, performing groups, with other fine arts and arts organizations. as educational or charitable For ex ample, argues the Milwaukee Orchestra exempt it is from federal income tax under I.R.C. 501(c)(3) § reported and has never the revenues from ticket sales to the IRS as "unrelated business taxable ("UBTI") meaning income" within the of I.R.C. §§ qualifies special 511-513;57that it for rates from the organization; U.S. Postal Service as an "educational" exempt property that it has been treated as from taxes 70.11(4) § under Wis. Stat. because it is a benevolent organization; purchases products paying that it without § 77.54(9a)(f); tax sales under Wis. Stat. and that it is required pay not taxes on ticket income/franchise ("UBTI") sales as "unrelated business taxable income" 71.26(1)(a). revenue under Wis. Stat.
¶ 110. We do not disturb these determinations of preferential status and non-taxation under other rules They largely question and statutes. unrelated to the *36 analyze sales-taxability before us. We the of admissions Symphony to Milwaukee Orchestra concerts as enter- places, using primary purpose tainment events or the 77.52(2)(a)2. § analyze test under Wis. Stat. We do not taxability the institutional status or of the Milwaukee Symphony Orchestra under other statutes.
¶ Symphony sum, 111. In none of the Milwaukee arguments Orchestra's is sufficient to overcome the due weight give applica- deference we to the Commission's
57Findings audit, of Fact Nos. 43-46. In a 1993 the IRS accepted Symphony that Milwaukee Orchestra's ticket sales "substantially were organization's related" to the tax-exempt purpose Finding and would not be treated as "UBTI" revenue. Fact No. 48. (a)2. 77.52(2) § interpretation to of Wis. Stat.
tion of its undisputed that the the conclusion facts to reach concert ad- sales of Orchestra's totality subject tax under the to sales missions are presented. the circumstances agree with the Commission 112. We Rep in the instant case and facts in Milwaukee relevant "substantially indistinguishable" and that effectively Rep in Milwaukee decision Commission's present in case. the outcome controls analysis present of "the moti- in the case Commission's sponsor purpose the nature of the . .. vation or attending, the audience's motivation event itself and to, is reasonable. its reaction the event" and
* * * * conclusion, the decision of the In we affirm give appeals. inter- too the Commission's court of We weight application pretation the statute due reason- that the Commission deference and conclude 77.52(2)(a)2. § applied ably interpreted and Wis. Stat. interpretation applica- more reasonable We see no 77.52(2)(a)2. replace § to Stat. tion of Wis. soundly therefore reasoned decision. We Commission's to the Milwaukee the sales of admission conclude that of admission concerts were sales Orchestra Stat. events" under Wis. "entertainment 77.52(2)(a)2. subject tax. and are sales appeals By decision of the court of the Court.—The affirmed. ROGGENSACK, J. PATIENCE DRAKE (concurring!dissenting). I the conclusion concur with *37 majority opinion by that tickets to reached
112 Milwaukee Symphony Orchestra's Classical and Pops 77.52(2)(a)2. Concerts are taxable under Wis. § Stat. However, I because conclude that the Youth Concerts1 are not primarily entertainment within the meaning of § 77.52(2)(a)2., I also conclude that the Youth Concerts are not taxable events thereunder. I Accordingly, dis- sent from that portion of the majority opinion that that decides the sale of tickets to Youth Concerts are 77.52(2)(a)2. subject to sales tax under
I. BACKGROUND (Mil- 115. The Milwaukee Symphony Orchestra waukee Symphony) performs three types con- certs: Classical Concerts, Pops Concerts and Youth I Here, Concerts.2 am concerned only with the Youth Concerts. Milwaukee Symphony's Youth Concerts "con- sisted of three different series of concerts directed at (a) children of different grade levels, namely, High 1 majority concludes distinguish it cannot Youth Concerts from the Pops Classical and Concerts because the Milwaukee Orchestra did argue not Youth distinguishable Concerts are and because it "relie[d] on the nature of the music itself as presenting primarily educa Majority op., tional content." 26. While the Sym Milwaukee phony may presented Orchestra have its case to this court as majority states, by we are party's not bound a concession of arguments. Lloyd law or Logging Frank Healy, App v. 2007 WI 249, n.5, 385, 15 306 Wis. 2d 742 N.W.2d (concluding an appellate court is not bound party's law, concession of particularly where the concession involves an erroneous inter statute). pretation Furthermore, of a Appeals Tax Commis analyzed sion the Youth separately Concerts from the Classical Pops Concerts its decision. DOR, Orchestra v. Docket No. (WTAC 2006) 98-S-130, slip op. at (Finding Dec. of Fact 55) No. [hereinafter Commission Decision]. *38 ('Middle School') (b) concerts, Youth concerts, School (c) All of Youth Concerts Kinderkonzerts."3 and presented halls concert in the same Milwaukee were Symphony Con- for its Classical used Milwaukee Performing namely Center the Milwaukee Arts certs, Center) (now, Theater.4 and Pabst Marcus gave percent on a 50 discount percent ages through and 6 17 a 10 tickets to children High and All of the School to educators.5 discount weekdays performed concerts were on Middle School during school hours. relating to the Youth facts Some majority opinion.6 However, in the are set out
Concerts undisputed that are are additional facts record there issue of whether Milwaukee relevant subject tax under Wis. Stat. Youth Concerts are 77.52(2)(a)2. presented § Those additional facts will be below.
II. DISCUSSION A. Standard of Review requires interpret ¶ 117. case us to This 77.52(2)(a)2. Statutory interpretation apply Wis. Stat. application questions of law that we review independently, benefitting interpretations from but preceded Badger ours. Richards v. Mut. Ins. that have Co., 541, WI 52, 14, 309 2d 749 N.W.2d581. 2008 Wis. ambiguous question is is also a "Whether statute 3 76). Id. at 21 (Finding of Fact No. 92). 77, (Findings 86, Id. 21, 24-25 of Fact Nos. 61). Id. at 17 (Finding of Fact No.
6 Majority 20-25. op., ¶¶ independent Physicians law" for our Awve review. v. Wis., Inc., 815, Ins. Co. 181 Wis. 2d 512 N.W.2d (Ct. 1994). App. interpretation statutory ¶ 118. When the at issue agency, an that of administrative here the Tax Appeals (Commission), Commission we the de review *39 agency, cision of the not the decisions of the circuit appeals. Corp., court or the court of v. DOR Menasha ¶88, 46, 579, 2008 WI Wis. 311 2d 754 95. In N.W.2d agency's interpretation our review of an administrative applied statute, of a we have three levels of common law deference: (1) deference, review; no often referred as de novo
(2) weight deference, due agency's where we affirm an interpretation if it is reasonable we conclude that interpretation another reasonable; is not more (3) deference, great weight affirm agency's where we an interpretation reasonable, if it is even when we con- interpretation clude that another more reasonable. Harley-Davidson, Racine State,, 86, Inc. WI v. 2006 (Roggensack, ¶ 104, 549, 292 Wis. 2d 717 184 N.W.2d concurring) (citing J., LIRC, UFE Inc. v. 201 Wis. 2d (1996)). 274, 285-87, 548 N.W.2d majority grants opinion weight ¶ 119. The due statutory interpreta- deference the Commission's agree. weight tion,7 a decision with which I Due defer- granted may legislature charged be ence when the has agency administering with the statute and the agency experience doing had has some in Id., least so. charged ¶ administering 105. The Commission is with 77.52(2)(a)2. § Wis. Stat. and has done so on three previous Repertory Theater, occasions. See Milwaukee (CCH) (WTAC Rptr. DOR, ¶ Inc. v. Wis. Tax 400-515 7 Majority op., ¶ 2000); DOR, Found., Inc. v. Wis. 15, Historic Sites
Dec. (WTAC (CCH) 1986); Rptr. ¶ 21, Jan. Tax 202-662 Rptr. Experimental DOR, v. Wis. Tax Ass'n Aircraft 1986). (WTAC (CCH) applying In 21, Jan. 202-672 weight affirm the Commission's deference, we will due 77.52(2)(a)2. interpretation we conclude unless interpretation reasonable. Racine is more another (Roggensack, Harley-Davidson, 2d Wis. concurring). J., interpreta- deciding another In whether interpretation em- than the
tion is more reasonable agency compare interpre- agency, ployed we interpretations. Id. This alternate tation with requires comparison our- we construe statute employ judicial expertise doing, Id. "In we selves. so major respon- statutory construction, and we embrace deciding sibility judicial government, branch mean." Id. what statutes *40 Interpretation Application
B. 77.52(2)(a)2. §
Wis. Stat. of tickets to Con- 121. Whether the sale Youth by interpretation of Wis. is driven certs are taxable 77.52(2)(a)2. 77.52(2)(a)2. § in rel- states Stat. Section part: evant (2) privilege selling, performing or fur- For the (a) par. at retail in
nishing the services described under users, imposed upon this to consumers or a tax state furnishing selling, persons all or ser- performing gross receipts rate of from vices at the 5% sale, furnishing or of the services. performance
(a) following herein to the imposed applies The tax types of services: amusement,
2. The athletic, sale of admissions to places entertainment or recreational events or .... types ¶ 122. The of tickets sale to all of events are 77.52(2)(a)2. § only not taxable Rather, under Wis. Stat. "amusement, athletic, those ticket sales to entertain- 77.52(2)(a)2. § ment or recreational events" are taxable. example, religious, Therefore, for ticket sales to educa- political tional or events are not taxable.
¶ 123. The Commission concluded that the con "primarily certs were events, entertainment" which it percent defined as more than 50 entertainment. It then primarily concluded that since concerts were enter events, tainment concert all ticket sales were taxable 77.52(2)(a)2.8 § under Wis. Stat.
¶ 124.
In
order
determine whether there is an
77.52(2)(a)2.
interpretation
§
of Wis. Stat.
that is more
by
reasonable than that chosen
the Commission, I must
77.52(2)(a)2.
§
meaning
determine the
Racine
Harley-Davidson,
(Roggensack,
292 Wis.
549,
2d
concurring).
begin
J.,
In order to do
I
so,
with the
statutory
by
legislature.
words chosen
State ex rel.
Cnty.,
Kalal v. Circuit
58, 45,
Court Dane
WI
for
271 Wis. 2d
¶ 125. In its of Wis. Stat. 77.52(2)(a)2., § types the Commission considered the taxable, events for which ticket sales are and it con- cluded that the concerts are entertainment events. begin examining meaning Therefore, I whether the ambiguous plain of "entertainment" is on face, its as 77.52(2)(a)2. employed question This is a of law. *41 Awve, 181 822. Wis. 2d at
8 at 46. Commission Decision
117 reasonably ambiguous ¶ when A statute is 126. meaning. people to its could differ as well-informed Cnty., 28, ¶ 260 19, v. 2003 WI Bruno Milwaukee The "entertainment" 633, N.W.2d656. term Wis. 2d 660 meaning to its or statute, in the either as is not defined legislature quantitatively. has not said what is, That legislature also The term "entertainment" means. percent of an of the attributes has not said whether 100 required before "entertainment" event are constitute or whether some as entertainment an event is taxable quantity attributes is suffic of entertainment lesser ient.9 legislature determining meant,
¶ In what the 127. ordinary meaning, given un their common words are they specially Id., technical defined words. less determining dictionary helpful in ¶ A 8. often commonly Cnty. ordinary meaning of used words. LIRC, 23, 293, 759 v. 2009 315 Wis. 2d Dane WI N.W.2d571. differing may An have event attributes may it attributes of
kinds of taxable events or contain events, as did events taxable and nontaxable both Experimental examined in Historic Sites Aircraft.10 professional example, match is athletic For tennis an my event. event and also an entertainment Under quanti defined "entertainment" on a Commissioner it that the concerts were more than tative basis when concluded "primarily entertain percent entertainment and therefore resulting ment" taxable ticket sales. Commission Decision DOR, Rptr. Experimental Wis. Tax Ass'n v. Aircraft (WTAC (CCH) 21, 1986), compared Jan. entertain 202-672 education, parties ment and which is the same context that and nontaxable have as the most relevant taxable chosen Symphony's of Milwaukee Youth Concerts. attributes *42 professional hypothetical, tennis match the sales of tickets to the tennis match would be taxable under Wis. 77.52(2)(a)2. § Stat. because both attributes of the statutory categories event fall within of taxable events. just likely ¶ However, it is as that an event, entertaining such as the Youth Concerts, is and educa- In tional. that circumstance, one attribute of the event category falls within a taxable event and the other Dictionary attribute does not. Webster's defines enter- diverting, amusing, causing tainment as "the act of or pass agreeably" someone's time to and educate as "fos- tering varying degrees growth expansion knowledge." Webster's Third New International Dictio- (1961). nary, 757, 723 quandary 130. The Commission's answer to this
of events with taxable and nontaxable attributes is to tax an admissions to event when it characterizes the "primarily" falling categories event as within one of the 77.52(2)(a)2. § in listed Wis. Stat. In us, the case before the Commission characterizes the Youth Concerts as entertainment, which the Commission asserts occurs percent when more than 50 of the event is entertain- greater percent may equate ment.11 While than 50 11The Commission asserts Milwaukee agrees "primarily is the test. Commission entertainment" Decision at 45. However, Symphony's Milwaukee brief in chief Foundation, DOR, refers to Historic Sites Inc. v. Rptr. Wis. Tax (CCH) (WTAC 21, 1986), 202-662 Jan. when it cites "primarily entertainment" test. in brief chief at 2 n.4. "Primarily entertainment" was not test in Historic Sites. employed Rather, Commission the test in Historic Sites the "primary objective" test, was where the Com primary objective mission focused on the of the Historic Sites Foundation in operating maintaining the Circus World Sites, (CCH) Historic Museum. Rptr. 202-662, Wis. Tax not Wis. appear does the word "primarily"
"primarily," 77.52(2)(a)2. However, legislature because Stat. character- could be that events must have been aware interpre- way, the Commission's in more than one ized *43 is reasonable. tation Wis. Stat. interpret could also 131. One 77.52(2)(a)2. attributes that nontaxable as providing
§ incidental,12 merely if are more than event, they anof categories outside of the taxable the event to fall cause purpose as the 77.52(2)(a)2., long primary §in so listed event is consistent sponsoring the organization of This second of the event. the nontaxable attributes with 77.52(2)(a)2. is § because is reasonable interpretation public to all tax on admissions over-arching not an the sponsoring events, and the primary purpose in past the Commission has been entity employed 77.52(2)(a)2.13 I conclude Accordingly, §of applications Play- Elephant 12,796. performances such as That there were Concerts, River, Happy's Unique Circus Instrument time in entertained, 12,794, id. at were Capers where attendees Clown objective of primary on the not alter the Commission's focus did Furthermore, a full review the Historic Sites Foundation. may accept the that while it Symphony's brief shows Milwaukee setting applicable out the words, as "primarily entertainment" applied is from test, argues that the test Milwaukee "primary objec- just as the Symphony's perspective, is, That Milwaukee applied. in was tive" test Historic Sites concerts should objective putting in on the Symphony's primary are taxable. control whether ticket sales 12 77.51(5) (2007-08) (defining "inciden § Stat. See Wis. tal"). (CCH) 202-662, Sites, § at Rptr. Tax See Historic Wis. (CCH) 202-672, § Rptr. 12,796; Aircraft, Tax Experimental Wis. Experimental 12,829 "primary purpose" of the (analyzing (the fly-in under con- hosting event Aircraft Association's interpretation that this second is reasonable as well. interpretations When there are two reasonable of a ambiguous. statute, Kalal, it is 633, See 271 Wis. 2d ¶ 47. 77.52(2)(a)2. taxing 132. Because Wis. Stat. is a taxpayer any
statute, the is entitled to the benefit of ambiguity City in the statute. DOR, Racine v. (Ct. 1983). App. 510, 2d Wis. 340 N.W.2d741 How agency interpreting ever, when an administrative charged by legislature statute that it was with administrating agency and the has had at least some experience doing interpretation prevails so, its unless interpretation. UFE, there is a more reasonable designated Wis. 2d at 285-87. The Commission has been subject judicial as arbiter, the final review, Department of decisions, Revenue's redetermination meaning such as is now before this court based on the *44 77.52(2)(a)2. 73.01(4) § § (2007-08); Wis. Stat. see App DOR, ¶ Gilbert v. 153, 9, WI 246 Wis. 2d 633 N.W.2d218. potential
¶ 133. There is a tension between the statutory interpretation provides maxim of that that the taxpayer ambiguities is entitled to the benefit of in taxing agency statutes and the maxim that when an is charged administering with a statute its reasonable interpretation prevail interpreta- should unless another explain tion is regard Because, more reasonable. I as below in interpreta- Concerts, to the Youth under either tion those required events, concerts are not taxable I am not potential
to resolve that tension. sideration) as the test to determine whether admission tickets taxable). test, were "primary objective" This as the test of Sites, Historic entity focused on the motivation that sponsored the event. agree part First, with the Commission's 134. I to an that has at- that ticket sales event
conclusion may events be both taxable and nontaxable tributes of legislature could the not taxed. I so conclude because have at least some events would have been unaware that not to tax. of events it chose incidental attributes question presented Accordingly, herein the interpretations my application of the two reasonable 77.52(2)(a)2. above be- identified of Wis. Stat. in is attributes the comes: What the level nontaxable perspective are Concerts and from whose these Youth mixed-attribute events evaluated? Youth otherwise, Stated because the Con- knowledge expand as the child
certs will cause child's to genre exposure presented the with a new musical familiar, which is not orchestral instruments with he thereby educating during child, the the concerts the entertaining pass agreeably, thereby the child's time will I taxable child, must determine how Youth Concerts' and nontaxable attributes are be evaluated. See Dictionary, 723, Third International Webster's New entertainment). (1961) (defining In so de- educate termining, I attributes examine the Youth Concerts' first perspective Symphony, of the Milwaukee from entity presented concerts, from and then perspective classes to the educators who took their during day, part way in on the concerts the school based the Youth Concerts were marketed. which Symphony's perspective
1. Milwaukee incorporated ¶ 137. Milwaukee was *45 Symphony's purposes.14 educational Milwaukee Ar- for Incorporation, as restated in set out its ticles purposes as follows:
14 7). Commission Decision (Finding at 4 of Fact No.
122 orga- Corporation for the purposes The which educational, and other present to classical nized are music, highest degree performed with the orchestral excellence, develop public ap- to and promote artistic music, public to the in such preciation of and educate any activity within the engage to in other lawful and organized may be corporations for which purposes 181 of the Wisconsin Statutes.15 Chapter under Symphony "Education Office" maintains an Milwaukee employs Education." a "Director of and Symphony approached the also 138. Milwaukee oppor- way educational in a to facilitate Youth Concerts example, in advance for the children. For tunities whose concerts, offered teachers Milwaukee attending concerts three different would be classes prepare types use teachers could of materials that Symphony offered First, Milwaukee their students. "deeper teaching included instruction materials concerts, the music the themes discussions about suggestions composers, discussion, class for relating inter-disciplinary publications to the as as well docent offered Second, music."16 presentations, docent in which a trained classroom prepare students teacher's classroom visited upcoming fee, Third, for a small concert.17 for tapes the music were available.18 cassette 15 added). (emphasis Id. 81). (Finding No. Id. at 22 of Fact Sym from the Milwaukee The docents are individuals information League presenting
phony Orchestra trained about the Youth Concerts. required only materials that tapes The cassette were docent fee. instruction materials and pay
the school to charge. free of presentations were *46 Finally, High ¶ 139. after the and School Middle Symphony ques- concerts, School Milwaukee distributed complete.19 question- the to tionnaires to teachers The pro- naires which asked of the instructional materials prepare vided were "used to students the concert;" for to objectives what extent Milwaukee met its presenting concerts;20 the whether the materials were appropriate students, for use and for teachers lesson plans; plans and whether the teacher created lesson as outgrowth an and materials concert. Each of questions Symphony's these demonstrates Milwaukee gauge desire to the educational value of its concerts. Symphony requested question- Milwaukee Office," naires be returned to its "Education care of "Sue Manager." Medford, Concert MSO Education Perspective of the teachers ¶ 140. The teachers whose classes towere attend a request concert towere the offered materials. The order requesting form for such materials was on same form Request- to teachers used order the concert tickets.21 ing any simple checking of these was materials as as a indicating box on that form and to whom the materials 19 (Milwaukee 5,R. Ex. questionnaires). objectives, The pre-concert five which were listed in the (1) materials, recognize were: "To can suggest that music nature, city, sounds of people and who in a certain place live (2) time"; "To express understand how music story"; can (3) express "To understand music can the cultural heritage (4) specific country"; of a "To examine how music creates a sense (5) motion"; "To how the concept discover sound is used (Milwaukee 5, in language R. Ex. Symphony question arts." naires). (1996 21 R. Ex. YYYYYY Middle School Concerts Guide). Teacher's forms were returned sent. The order were be Manager."22 Symphony's "Education Concert Con were taken to Youth students *47 by day, during teachers, their who had the school certs by Symphony that de sent Milwaukee materials Responses features of concerts. scribed educational questionnaires that teachers coordinated indicated pre-concert their class materials with the concerts knowledge develop plans to the students' room lesson pres understanding music would be also focus is evi The teachers' educational ented.23 taking from class routine time the usual denced their bring students to the concerts. example Concerts, I an Youth As 142. They per- begin High were concerts. with the School High weekdays during only school hours. The formed on symphony generally the full featured School concerts performance of "traditional consisted of a orchestra and repertoire" music, all of classical and other "serious [was] theme an overall educational connected to which high appropriate One such "edu- for students."24 school entitled, cational theme" was a series concerts History Through "This series looked Music." "American through the humanities music and at United States beginnings through revolutionary 20th Cen- from its tury urbanization."25 example High a School thematic Another Edge" Cutting concert, "cel- which
concert "The was 22 added). Id. (emphasis 23 (Milwaukee questionnaires). Ex. R. See 79) (Finding of Fact No. Commission Decision added).
(emphasis
25Id. ebrate[d] compositions a handful of that were radical departures day. Extending from the music of their back nearly present[ed] over centuries, three the concert chronological cavalcade of orchestral music that was actually shocking to its first audiences."26The teachers' biographies composer materials included of each and an example why "cutting edge" his music was on the for day.27 his High pro- school students received "concert
gram guides, explanations some of which contained some background about the orchestra, materials about the composers, glossaries, explanatory materials about the suggestions questions music, as to what to for, listen for thought and discussion."28 High
¶ 145. As with the School concerts, Middle *48 School students attended concerts linked to thematic experiences. example, they pre- educational For were sented with "The Science of Sound" concert where "stu- get [would] dents problem-solving inside that creative process they look[ed] through as 'microscope' a musical revolutionary piece history sym- at the most in the phonic Symphony!"29 music, Beethoven's Third "The special program Science of Sound" had a docent where explain trained volunteers came to middle schools to intriguing proposition. this "Kaleidoscope," featuring "Children of Wis- presented consin" and "Children of World," was also 26 (1992-93 5,R. Ex. KKKKKK High School Concerts Guide). Teacher's 27Id. Commission Decision at 22 (Finding of Fact No. 80). (1996 5, R. Ex. YYYYYY Middle School Concerts Guide). Teacher's generate attempted an It to a Youth Concert.30 as understanding the cul- our culture and of "both own presented peoples."31 to materials The of distant tures explained: the teachers life and cultures brings to the musics concert
[T]his Rim, America, Europe Pacific and Africa. Latin very in this music is some Among the common elements Sym- exciting drumming, only by [Milwaukee not by Native American percussionists, but also a phony] drummer, Thompson, and an African Earl dancer drummer-dancer.32 Kaleidoscope described materials 147. Other composers music around the world from example, Yagi Bushi, a the United States. For
from presented through Japanese composer, music his was early beginnings Anton son."33 as a "farmer's and his regard composer, described in Dvorak, a Czech was played.34 composition Bern- would Leonard his be being presented composer, as stein, was a United States evoking "particularly inten- the nervous when effective sity life."35 modern urban of America's were similar Middle School concerts they geared High except concerts were School grades younger age group, three students toward through eight. dif- were directed Individual concerts (1993-94 Program Youth Concerts R. Ex. MMMMMM Teachers). for Guide *49 31Id.
32Id. 33Id.
34 Id.
35Id.
127 pairs grades.36 example, ferent of such For one concert may grade be directed at third and fourth students, may while another concert be directed to seventh and eighth grade students. High
¶ 149. concerts, As with the School generally Middle School concerts featured Milwaukee Symphony's types orchestra; full same three pre-concert materials and docent instruction were upon request. to available teachers were Concerts like- presented only during weekdays during wise and school hours.37 High
¶ 150. As concerts, with School "1) present Middle School concerts were marketed: young people open live concerts which will excite and up symphonic they them to a world of music which will 2) and] provide special- love[; and understand music program ists and classroom teachers themes, with relevant curriculum effective resources which can integrated learning be into the total environment."38 Symphony's
¶ 151. Milwaukee "Kinderkonzerts 3-8)."39 very young (ages were directed at children mostly Kinderkonzerts "consisted of traditional music repertoire appropriate from the classic that would be young popular children," for but also included children's songs.40 organized specific Each concert was around
36 85). (Finding Commission Decision 23 No. Fact 37 (1994-95 5, brochure) R. See Ex. 58 Youth Concerts (indicating that the Middle School concerts were offered at (1994-95 10:30 p.m.); High a.m. 12:30 R. Ex. 27 School form) (indicating Concerts order High that the School concerts were offered at 10:30 a.m. and p.m.). 12:30 (1994-95 brochure). 5, Ex. R. Youth Concerts 88). (Finding Commission Decision at 24 of Fact No. 40Id. *50 performance.41 The influenced the entire theme that learning the to "facilitate children's meant themes were music."42 about the subscribed the "Families 152. 'Kinderkits,' advanced consist-
Kinderkonzerts received containing descriptions ing brief of of materials written suggested composers, and the lists activi- the music parents to read their children ties, materials for pictures descriptions regarding music, of or- the suggested readings."43 instruments, and lists chestra Cards," included "Kinder which The Kinderkits featuring pictures relating to of and information cards responsible for in- Parents were musical instruments. on these materials.44 struction based The Kinderkonzerts often included educa- the concert itself. For tional in addition to activities "Petting example, in Zoo," a concerts have featured permitted to the children touch musical which the were during preceding they con- instruments that heard presented in cert.45Other activities based on music designed to create an interest were concerts among very young children.46 music My record, of the as set forth examination preceding discussion, leads me to conclude that in the quantitative the educational attributes on basis the concerts' entertainment Youth Concerts exceeded Therefore, test, under the Commission's attributes. "primarily not entertainment." Youth Concerts were 41 91). (Finding 25 No. id. at Fact See 42Id. 89). (Finding 24-25 of Fact No. Id. at 44 Id. 90). (Finding Fact at 25 No. Id. 93). (Finding id. of Fact No. See preceding
Furthermore, forth in as set discussion, conclusively primary the record establishes that *51 purpose creating pre- in senting the Youth Concerts was educational. Accord- ingly, interpretation under either reasonable of Wis. 77.52(2)(a)2., § Stat. to admissions the Youth Concerts are not taxable. Although, normally
¶ I 155. would defer to the application interpretation Commission's of its own 77.52(2)(a)2., I Wis. Stat. do so cannot here because the Commission's conclusion that Youth the Concerts are primarily findings entertainment is based on factual that supported by are not credible and substantial evidence in Hearings the record. See Town Barton v. Div. & Appeals, App 169, 2002 628, WI 256 Wis. 2d 649 (explaining agency's N.W.2d293 that we will affirm an by supported factual determination that is credible and evidence). substantial First, said, Commission "Never were
[the] they any- concert audiences asked if had learned thing [Milwaukee Symphony] concerts, from or how [Milwaukee Symphony] improve could the educational directly value of its concerts."47This assertion is contra- questionnaires dicted that were sent to the part teachers who were of the Youth Concert audi- contradictory ences.48 In addition evidence, testimony there is no substantial and credible in the support record to the Commission's statement that the Youth Concert audiences were never asked about impact educational of the concerts. "[Milwaukee Second, said, Commission
Symphony] had no structured instructional curriculum added). (emphasis Id. (Milwaukee 5.,R. See Ex. 39 questionnaires). specific . . and skill or course. no instructional or by attending developed knowledge was obtained by the edu- is contradicted This assertion concerts."49 accompanied the materials that cational, instructional Through History programs, Music," "The "American "Kaleidoscope" Cutting Edge," Sound," Science of "The Again, regard Petting Youth to the "The Zoo." with evidence no substantial and credible Concerts, there is support no skill or statement that the Commission's very young knowledge acquired. children Even the was participated concerts, and then attended who learning Petting from sounds came Zoo, which were they stage and touched as came on instruments which trumpet had instrument violin, a or some other during played the concert. been *52 "There is no Third, the Commission stated: 158. attending a con- correlation between direct or concrete learning."50This is an unreasonable statement cert and knowledge classical a lack of about that shows either by learning. misperception meant of is music or a what appreciation of music is one of in the To be educated Stravinsky Igor pillars education. As of a classical explained speaking of com- of work classical when " composer poser, is the Schumann, 'Schumann Robert learn of their children some childhood .. . because of piano albums.'" music in his marvelous first (2003) Dictionary Biography Houghton 1367 of Mifflin Igor Stravinsky, (quoting Themes and Conclusions (1972)). Accordingly, I that the Commis- conclude 77.52(2)(a)2. § application in Wis. Stat. erred its of
sion (1) applied it the Youth Concerts because: 77.52(2)(a)2. findings § for there which on factual based added). Decision (emphasis Commission added). Id. (emphasis
is in record; not substantial and credible evidence (2) 77.52(2)(a)2. § it without consideration of the applied in regard extensive record to the educational attributes (3) 77.52(2)(a)2. Concerts; of the Youth applied § it erroneous, on preconceived based notions about of regard children, nature music in to the education of for there absolutely support any which no in type I Accordingly, record. conclude that Con- Youth are not primarily events, rather, certs entertainment but they events, are educational wherein the sale admis- 77.52(2)(a)2.51 § sion tickets are not taxable under
III. CONCLUSION I concur with the conclusion reached by the majority tickets opinion to Milwaukee 51The brief Commission's also relies on Admin. Wis. Code 11.65(1) 2006), § (Sept. Tax which addresses ticket admission are gives sales that taxable. The rule examples administrative as sales, movies, ticket ballets, taxable "admissions to musical and games, circuses, performances, dance ball campgrounds, carni vals, plays, hockey shows, fairs, games, ice snowmobile and races, pleasure automobile § tours or cruises." Tax 11.65(1)(a). 11.65(1), There is a tension reading § between literal of Tax wherein the examples taxable events stated rather terms, interpretation absolute and the Commission's of Wis. Stat. 77.52(2)(a)2. taxing as "primarily" admissions to events that are amusement, entertainment, However, athletic or I recreational. *53 note an scope that administrative rule cannot exceed Converse, statute, 120, see Cnty. 125, Oneida v. 180 Wis. 2d 508 (1993), 416 N.W.2d and that the Commission is the final arbiter meaning of the statutes, subject judicial of taxation only to DOR, review, 153, 9, v. App Gilbert 2001 WI 2d Wis. 73.01(4). § 218. Wis. Accordingly, N.W.2d Stat. I no need have employed to address the rule I because have the Commission's 77.52(2)(a)2. interpretation §of above discussion. Pops Symphony's are taxable Classical Concerts 77.52(2)(a)2. § I However, because under Stat. Wis. primarily that the Youth Concerts not conclude § 77.52(2)(a)2., meaning of I entertainment within are not taxable that the Youth Concerts also conclude Accordingly, I from dissent that thereunder. events opinion majority portion that decides subject to tax Concerts are sales sale of tickets Youth 77.52(2)(a)2. under Justice I am authorized state joins GABLEMAN this
MICHAEL J. concurrence/ dissent.