dissenting.
After reviewing the transcript of the hearing before the Administrative Hearing Commission and the briefs, and studying the labyrinthine federal statutory provisions about the various retirement programs, I believe that the Director of Revenue, by denying the taxpayers a state income tax deduction for Victor Witte’s payments to the Civil Service Retirement System (CSRS),Tailed to follow Davis v. Michigan, 489 U.S. 803, 109 S.Ct. 1500, 103 L.Ed.2d 891 (1989), and that his attempts of further collection violate the provisions of 4 U.S.C. § 111 (1988), by discriminating “against the officer or employee because of the source of the pay or compensation.” We are therefore obliged to reverse with directions to abate the assessments and allow the claimed deductions.
This issue is purely one of federal law. By adopting 4 U.S.C. § 111, Congress sought to lay at rest the decades-old controversy about the permissible extent of state taxation of the compensation of federal employees. It might be said that Davis renders a portion of § 143.141(4)(a), RSMo 1986, unconstitutional, but only because the Missouri statute’s listing of certain retirement contributions creates an invalid discrimination against those federal employees whose retirement contributions are not likewise made deductible. The invalidity arises only because of the supremacy clause of art. V of the Constitution of the United States, and can be corrected by allowing the taxpayers to make the appropriate deduction.
I find the principal opinion’s conclusion that the taxpayers failed to discharge their “burden of proof,” utterly incomprehensible in the context of this case. The matter was heard before the Administrative Hearing Commission at two sessions, one involving the 1987 tax year and one the 1988 tax year. Neither taxpayer Victor Witte, who presented his own case, nor counsel for the Director, nor the Commissioner, thought that there was any factual issue in the case. The taxpayers placed Davis v. Michigan squarely on the table, with appropriate citations to the governing federal statutes. They also asked the Commissioner to exercise equitable discretion in the construction of § 143.141(4), so as to include retirement deductions for CSRS contributions, along with FICA deductions under Subsection (a), railroad retirement tax deductions under Subsection (b), and tax on self-employment income under Subsection (c). This, the Commissioner properly held that he could not do. He said that he had to take the statutes as he found them. As to Davis v. Michigan, he said simply, “... nor can we, as an administrative tribunal, declare the [state] statute unconstitutional. Only the judiciary can set aside a statute on grounds of unconstitutional unfairness [sic].” He cited City of Joplin v. Industrial Commission of Missouri, 329 S.W.2d 687 (Mo. bane 1959) and State Tax Commission v. Administrative Hearing Commission, 641 S.W.2d 69 (Mo. banc 1982). The Commissioner exercised no fact finding authority on the Davis issue, but limited himself to the construction of the Missouri statute. Thus this Court presents the only forum for adjudication of the federal issue properly tendered and preserved.
When the principal opinion suggests that the taxpayers failed to meet their burden of proof, it intimates that there might be some evidence that these taxpayers, or some other taxpayers, could produce before the Administrative Hearing Commission which would possibly sustain their position. If this is so, elementary fairness would indicate a remand to the commission to allow the presentation of additional evidence and to permit additional findings as to whether CSRS is “comparable” to social security. International Materials Corp. v. Sun Corporation, Inc., 824 S.W.2d 890 (Mo. banc 1992). Otherwise, the judicial system has effectively mousetrapped the taxpayer. Cf. Brinkerhoff-Faris Trust & Savings Co. v. Hill, 281 U.S. 673, 50 S.Ct. 451, 74 L.Ed. 1107 (1930), in which the Supreme Court of the United States strongly criticized this Court for giving a taxpayer a similar judicial runaround.
*443I fail to see, however, how any additional evidence would be helpful, or even admissible. The Court, in footnote 3, is playing games with the taxpayers. The several retirement programs, and their attendant deductions, are established by and fully described in the federal statutes. The essentials of CSRS are set out at 5 U.S.C. §§ 8301-8351 (1988). Its successor program, FERS, is described at 5 U.S.C. §§ 8401-8479 (1988). The Social Security Act is found at 43 U.S.C. §§ 301-433 (1988), and the tax on employees under the Federal Insurance Contributions Act is imposed by 26 U.S.C. § 3101 (1988). The Railroad Retirement Act, which antedated social security, is found in 45 U.S.C. § 231 (1988), with myriad subsections, and the tax to fund it, made deductible by Subsection 4(b) of our statute, is imposed by 26 U.S.C. §§ 3202 and 3211 (1988). The tax on self-employment income, designed to admit self-employed persons to the benefits of the social security system, is imposed by 26 U.S.C. § 1401 (1988) and made deductible by Subsection 4(c) of the Missouri statute. Our power of judicial notice extends to the myriad regulations implementing these statutes. 44 U.S.C. § 1507 (1988); Hall v. Bucher, 240 Mo.App. 1239, 227 S.W.2d 96, 98 (1950). I do not find such recourse necessary; the statutes speak for themselves and say it all.1
Under these circumstances, it is the plain duty of the Court to scrutinize these statutes, with the assistance of counsel, and to place the judgment of the law on the undisputed facts. If we do our duty in this respect, then the Supreme Court of the United States may determine whether we are on sound ground under the federal statute, which provides the sole authority for state taxation of federal compensation. The Court has all the information before it which is necessary to decide the case. If the taxpayers seek further review, I hope that the Supreme Court of the United States will realize that the case is ripe for review and that all material facts have been adduced.
I agree with the principal opinion in its conclusion that the treatment accorded teacher retirement programs under Missouri and federal law may not be considered. This is so because any discriminatory treatment of teachers is expressly sanctioned by the federal law. But refutation of this single point raised by the taxpayers does not detract from the validity of their other arguments.
If we are to proceed by burden of proof analysis, it is patent that the taxpayers have made a prima facie case. Taxpayer Victor Witte is obliged, as are all other federal employees under the “old” system, to contribute 7% of his gross earnings in order to secure his retirement benefits. 5 U.S.C. § 8334(a)(1). He never sees this money. Participants in the social security and railroad retirement programs likewise are required to contribute a portion of their earnings “up front,” but they are allowed tax deductions for the amounts so withheld. Thus, there is a clear discrimination between this taxpayer and other taxpayers, based solely on “the source of the pay or compensation.” The appealing taxpayers are treated less favorably than state employees subject, to the social security program; federal employees under the FERS system; employees of other employers who are subject to social security tax; employees subject to the Railroad Retirement Act; and self-employed persons.
Yet the principal opinion says that “significant differences between [several] classes may exist and that ‘at no point do the appellants carry their burden of proving that CSRS is the equivalent of social security.’ ” Inasmuch as the details of the programs are all set out in the governing statutes, it is our plain duty to analyze these statutes to see whether the disclosed differences are significant.
The Attorney General has suggested several differences, and I have searched the statutes for others. Before examining the differences it is helpful to revisit Davis. *444There, the alleged discrimination was between federal retirees and state retirees. I cannot find in the opinion any indication that the Court required a showing that the programs were equivalent. The state pointed out that the federal retirement programs were much more benevolent than the state programs. The Court curtly replied that the state might take this discrepancy into account by a uniform limitation on the amount which would not be taxable, but that a blanket rule that all federal retirement compensation was subject to state income tax, while no state retirement income was so subject, could not stand. Davis, 489 U.S. at 817, 109 S.Ct. at 1508. This holding controls the disposition of any differences suggested by counsel, or any other that I am able to perceive. I proceed to consider the possible differences.
1. The statutes demonstrate that Witte, in 1987, could have elected to discontinue his participation in the CSRS program and could have become a participant in the FERS program, in which he would pay the equivalent of the social security tax. If the court considers this circumstance controlling, it should say so. I cannot, for my part, see that it is. The option is one provided by the federal government. Witte was required to contribute to one program or the other. The state should not be allowed to burden a choice made available by federal law. See, e.g., Perez v. Campbell, 402 U.S. 637, 91 S.Ct. 1704, 29 L.Ed.2d 233 (1971).
2. The state makes much of the point that, according to Victor Witte’s own statement, CSRS is a “better deal” for the older federal employees. The suggestion that a better deal is a significant circumstance appears to be conclusively answered by Davis’ holding that the better federal retirement program made no difference. See Davis, 489 U.S. at '817, 109 S.Ct. at 1508. One reason the deal is better, apparently, is because participants in CSRS may be entitled to make lump sum withdrawals, 5 U.S.C. § 8342, and are guaranteed the recovery of their own contributions if they leave government service before becoming eligible for a retirement annuity, 5 U.S.C. §§ 8333-8334. It is significant that participants in programs under the Railroad Retirement Act, whose compulsory contributions are deductible on their Missouri returns, have similar rights to lump sum withdrawals and are entitled to benefits upon leaving government service early. 45 U.S.C. § 231e. Social security participants, in contrast, reap only the benefits provided by law, and may lose substantially all of these benefits through such accidents as early death. Davis flatly rejected the argument that a state may tax federal pension benefits simply because they are more generous than benefits which the state does not tax. Davis, 489 U.S. at 817, 109 S.Ct. at 1508.
3. The CSRS deduction is greater than the social security deduction, but smaller than the self-employment tax. Under Davis, the size of the deduction is irrelevant.
4. The principal opinion in footnote 4 intimates that there is no violation of 4 U.S.C. § 111, because all federal employees are not discriminated against, in that FERS participants are treated in the same manner as state employees and employees of other employers. I cannot find any support for this proposition in authority or reason. The benefits of 4 U.S.C. § 111 are available to any federal employee who is discriminated against in state taxation, by reason of the source of the employee’s income. It matters not that there are other federal employees who are not victims of similar discrimination.
5. It is clear from Davis that the taxpayer has no burden of showing that the operations or interests of the federal government are actually disadvantaged or impeded. Davis, 489 U.S. at 814, 109 S.Ct. at 1507. The statute forbids treating federal employees less favorably than any substantial group of taxpayers. It is interesting to observe that Justice Stevens, in his Davis dissent, pointed out that federal employees in Michigan were treated in the same manner as the great majority of Michigan taxpayers, and that only employees of the state of Michigan were placed in an advantageous position. Davis, 489 U.S. at 821, 109 S.Ct. at 1511 (Stevens, J., dis*445senting). The Court nevertheless found an invalidating discrimination. Here, a relatively small class of federal employees suffers disadvantage when compared to the great mass of taxpayers.
6. No “antifederal” intent is required under Davis. There the manifest purpose of the statute was to prefer state retirees to all other taxpayer retirees. Here the state discriminates against one class of federal retirees, in favor of substantially all other taxpayers.
If there are other differences which would support the director’s position, I fail to perceive them. It is up to the state to peruse the governing statutes and point to any significant distinctions. When the employee never sees the pay, the disallowance of a deduction reduces his net compensation. The state does not suggest that there is a difference between a discriminatory tax on the pay and a discriminatory denial of the deduction for a mandatory withholding from salary.
So, the record shows that the taxpayers fully discharged their burden by pointing to Davis. The principal opinion suggests that they are in some way at fault in not making some additional showing. I believe that they have done all they need to do.
There is another reason why we should reach an unequivocal decision in this case. Victor Witte, a lawyer, is litigating his own case. The amounts involved are rather small. He testified that he typed his own briefs and worked on off time. I find particularly offensive the state’s collection of small amounts from numerous taxpayers who may not be able to retain counsel to launch an effective protest if indeed the collection is invalid. This is especially so when the Administrative Hearing Commission professes inability even to make a decision on their vital points. We should give the taxpayers a square ruling on the merits, so that, if the ruling is unfavorable to them, they may seek further review.
We should do our plain duty by ruling this case on the merits. I believe that my solution is sound, but if the majority feel otherwise, they should at least present a reasoned explanation of their views so that the Supreme Court of the United States may decide whether we have properly evaluated the controlling statutes and authorities.
I would reverse the decision of the Administrative Hearing Commission and remand with directions to allow the claimed deductions.
. I suppose that it might be possible to introduce actuarial testimony to compare the several plans, but this would simply quantify the differ-enees among the programs, which are qualitatively demonstrated on the face of the statutes.