dissenting:
This appeal raises two questions: the validity of Rule 47.1-1613, 1 C.C.R. 207-1 (1991), adopted by the Colorado Limited Gaming Commission, and its application to certain payments made by appellant Tivolino Teller House, Inc. to patrons who wagered at least $200 pursuant to the terms of a Casino Slot Club program established by Tivolino. Tivolino concedes that the program is promotional for purposes of the rule. In Part III A of its opinion the majority determines that Regulation 1613 does not violate article XVIII, section 9(4)(a), of the Colorado Constitution or section 12-47.1-103(1), 5B C.R.S. (1991), and that the Gaming Commission properly excluded those payments for purposes of computing Tivolino’s adjusted gross proceeds. In Part III B of its opinion the majority concludes that those payments must be deemed sums wagered by the participating members.1 I respectfully disagree with the majority’s analyses and ultimate determination in Part III B of its opinion. On the basis of the record here, I conclude that the payments to participating members of the Casino Slot Club can not be taxed because such payments are not “wagers” for purposes of section 12-17.1-103(1). I therefore would not address the question of the validity of Regulation 1613, and respectfully dissent from the majority opinion.
The General Assembly has defined the term “adjusted gross proceeds” for purposes of tax liability as follows:
“Adjusted gross proceeds” ... means the total amount of all wagers made by players on limited gaming less all payments to players.
§ 12-47.1-103(1), 5B C.R.S. (1991).2 The General Assembly has thus determined that only sums wagered may be considered to constitute a portion of a casino’s adjusted gross proceeds. Thus, the pivotal question in this case is whether the sums received by patrons who in fact claim reimbursement from Tivolino pursuant to the terms of the Casino Slot Club program are sums wagered for purposes of the statute.
Under the terms of that program, a club member is entitled to receive a payment of one dollar for every 200 dollars wagered by that patron. Tivolino asserts that those participating members who receive the guaranteed payments in fact wager only 99.5 cents of each dollar they spend in playing the slot machines because such patrons are guaranteed a return of .5 cent for each such expenditure. I find Tivolino’s argument persuasive, and conclude that participating members do not wager the .5 cent per dollar they are guaranteed to receive.
As the majority notes, the Commission concedes that “the effect of the slot club is to allow its members to place 99.5 cent wagers instead of $1 wagers,” such that the .5 cent *1218per dollar retained by participating members is never subject to any risk of loss and never actually wagered. Maj. op. at 1216. However, the majority suggests that such acknowl-edgement, if accepted as dispositive, would result in the conclusion that the program violates Rule 47.1-1307, 1 C.C.R. 207.1 (1991), (Colorado Gaming Regulation 1307), by effectively allowing participating members to purchase tokens for 99.5 cents and later redeem them for one dollar. Maj. op. at 1216.
However, the stipulated facts require a contrary conclusion. A participating member can not purchase $199 in tokens and later redeem them for $200. To the contrary, participating members and all other casino patrons of Tivolino initially purchase tokens at face value and, presumably, redeem all unused tokens for the same face value. Furthermore, there is no basis in the record to assume, as the majority appears to do, that all Casino Slot Club members become participating members every time they visit Tivoli-no. For example, a club member may elect to purchase only $150 worth of tokens—or elect not to redeem a completed card. There is no prohibited redemption and thus no violation of Colorado Gaming Regulation 1307.
The majority recognizes these possible scenarios but suggests that because Casino Slot Club members are “not guaranteed to receive a .5<p credit on every dollar spent,” such .5 cent sum must be deemed a wager. Maj. op. at 1216. In my view, this analysis fails to recognize the fact that Tivolino seeks to exclude from its adjusted gross proceeds only those sums actually paid to members who claim the guarantee—that is, sums paid to participating members. Casino Slot Club members who wager less than $200 or who elect not to claim the guarantee receive no payments, and payments are made only with respect to $200 wager units. In my view, the majority’s analysis does not address the fact that only participating members receive a guaranteed payment equal to .5 cent for each dollar spent in playing the slot machines. That guaranteed payment is not subject to any risk of loss.
In these circumstances, for purposes of section 27-47.1-103(1) participating members wager only 99.5 cents of each dollar’s worth of tokens spent on playing the slot machines. Accordingly, Tivolino is entitled to exclude the guaranteed payments of .5 cent guaranteed for each dollar spent by participating members from the amount reported as wagers pursuant to such statute. I therefore conclude that Tivolino is entitled to the tax refunds it claims, and respectfully dissent from the majority’s contrary determination.
I am authorized to say that Justice LOHR joins in this dissent.
. For purposes of this dissenting opinion, the term "participating members” refers to those members of the Casino Slot Club program who actually wager amounts of at least $200 and also elect to claim the benefits per $200 wagered. Tivolino makes payments only with regard to wager units of $200. Thus, a player who wagers $300 is paid $1, and under Tivolino’s theory the sum of $299 would be reported as the amount wagered by that player for purposes of calculating Tivolino's adjusted gross proceeds.
. The Gaming Commission has farther defined "wager” in Gaming Regulation 1613: “A specific wager requires two or more persons to stake something of value on an event, the outcome of which is uncertain. Depending upon the outcome, the winning party receives everything that was staked. If only one party risks something of value, there is no wager." Rule 47.1-1613, 1 C.C.R. 207-1 (1991); maj. op. at 1211.