concurring.
Although the Columbia Athletic Club majority is lost, I am still unwilling to abandon the primary purpose test in favor of a de minimis test. Following the lead of the majority in this case, I will not restate the rationale set out in the principal opinion in Columbia Athletic Club, except to raise three short points: First, though the primary purpose test may be difficult to apply because the dual nature of fitness center exercise is difficult to quantify, the test is not “unworkable.” In*427deed, as will be discussed, the AHC was able to apply the primary purpose test to the facts of this case and resolve the case in a way that appears satisfactory. In any event, regardless of the difficulty of application, this Court is obligated to follow the primary purpose test if it is more in keeping with section 144.020.1(2), which imposes the tax only to the extent that the activities of the place in question are in fact recreational. Second, the primary purpose test is indeed more in keeping with section 144.020.1(2) because, unlike the de minimis test, it properly takes into account the dual nature of exercise activities and subjects the fitness center to the tax only when the recreational component of the activities outweighs the health and fitness component. In contrast, to the extent that the recreational component of exercise is more than de minimis but less than its primary purpose, the majority allows imposition of a tax that the statute does not allow. Finally, by disregarding the ambiguity that arises by applying the term “recreation” to activities that are part recreational and part non-reereational, the majority conveniently avoids the rule of construction that requires ambiguities in statutes imposing taxes to be construed in favor of the taxpayer and against the taxing authority. American Healthcare v. Director of Revenue, 984 S.W.2d 496, 498 (Mo. banc 1999). Under the majority’s de minimis test, the ambiguity is resolved in favor of the taxing authority and against the taxpayer the opposite of what the rule requires.
Whatever the test employed, I would affirm the decision of the AHC. Under section 621.050.2, RSMo 1994, the taxpayer has the burden to prove that it is not liable for the amounts assessed, but in this case the taxpayer did not meet that burden. The record shows that substantial portions of taxpayer’s facilities are used for tennis, racquetball, basketball, volleyball, and swimming, which, as this Court noted in Columbia Athletic Club, are activities ordinarily undertaken for recreational, rather than health or fitness purposes. Although taxpayer charges its members extra fees to participate in those recreational activities, and though taxpayer pays taxes on those extra fees, only members of the fitness center are entitled to pay the extra fees and participate in those activities. As the AHC observed, “it appears that the membership fees are necessary for [taxpayer] to offer additional activities to members for a smaller fee.” Because the membership fees are inextricably intertwined with the availability of taxpayer’s substantial facilities for recreational activities, the taxpayer has not met its burden in establishing that the primary purpose of the club was non-recreational.
The majority’s concern that this conclusion “leads to the anomalous result that, in the same community, one health and fitness center’s membership fees are subject to the state sales tax while another health and fitness center’s membership fees are not,” is illogical. The different outcome in the two cases is simply a function of the different proof in the two cases.
For these reasons, I concur in the majority’s outcome, but not its rationale.