Milwaukee Symphony Orchestra, Inc. v. Wisconsin Department of Revenue

PATIENCE DRAKE ROGGENSACK, J.

¶ 114. (concurring!dissenting). I concur with the conclusion reached by the majority opinion that tickets to the *113Milwaukee Symphony Orchestra's Classical and Pops Concerts are taxable under Wis. Stat. § 77.52(2)(a)2. However, because I 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. Accordingly, I dissent from that portion of the majority opinion that decides that the sale of tickets to Youth Concerts are subject to sales tax under § 77.52(2)(a)2.

I. BACKGROUND

¶ 115. The Milwaukee Symphony Orchestra (Milwaukee Symphony) performs three types of concerts: Classical Concerts, Pops Concerts and Youth Concerts.2 Here, I am concerned only with the Youth Concerts. Milwaukee Symphony's Youth Concerts "consisted of three different series of concerts directed at children of different grade levels, namely, (a) High *114School concerts, (b) Youth ('Middle School') concerts, and (c) Kinderkonzerts."3 All of the Youth Concerts were presented in the same Milwaukee concert halls used by Milwaukee Symphony for its Classical Concerts, namely the Milwaukee Performing Arts Center (now, the Marcus Center) and the Pabst Theater.4 Milwaukee Symphony gave a 50 percent discount on tickets to children ages 6 through 17 and a 10 percent discount to educators.5 All of the High School and Middle School concerts were performed on weekdays during school hours.

¶ 116. Some of the facts relating to the Youth Concerts are set out in the majority opinion.6 However, there are additional undisputed facts of record that are relevant to the issue of whether Milwaukee Symphony Youth Concerts are subject to tax under Wis. Stat. § 77.52(2)(a)2. Those additional facts will be presented below.

II. DISCUSSION

A. Standard of Review

¶ 117. This case requires us to interpret and apply Wis. Stat. § 77.52(2)(a)2. Statutory interpretation and application are questions of law that we review independently, but benefitting from the interpretations that have preceded ours. Richards v. Badger Mut. Ins. Co., 2008 WI 52, ¶ 14, 309 Wis. 2d 541, 749 N.W.2d 581. "Whether a statute is ambiguous is also a question of *115law" for our independent review. Awve v. Physicians Ins. Co. of Wis., Inc., 181 Wis. 2d 815, 822, 512 N.W.2d 216 (Ct. App. 1994).

¶ 118. When the statutory interpretation at issue is that of an administrative agency, here the Tax Appeals Commission (Commission), we review the decision of the agency, not the decisions of the circuit court or the court of appeals. DOR v. Menasha Corp., 2008 WI 88, ¶ 46, 311 Wis. 2d 579, 754 N.W.2d 95. In our review of an administrative agency's interpretation of a statute, we have applied three levels of common law deference:

(1) no deference, often referred to as de novo review; (2) due weight deference, where we affirm an agency's interpretation if it is reasonable and we conclude that another interpretation is not more reasonable; and (3) great weight deference, where we affirm an agency's interpretation if it is reasonable, even when we conclude that another interpretation is more reasonable.

Racine Harley-Davidson, Inc. v. State,, 2006 WI 86, ¶ 104, 292 Wis. 2d 549, 717 N.W.2d 184 (Roggensack, J., concurring) (citing UFE Inc. v. LIRC, 201 Wis. 2d 274, 285-87, 548 N.W.2d 57 (1996)).

¶ 119. The majority opinion grants due weight deference to the Commission's statutory interpretation,7 a decision with which I agree. Due weight deference may be granted when the legislature has charged the agency with administering the statute and the agency has had at least some experience in doing so. Id., ¶ 105. The Commission is charged with administering Wis. Stat. § 77.52(2)(a)2. and has done so on three previous occasions. See Milwaukee Repertory Theater, Inc. v. DOR, Wis. Tax Rptr. (CCH) ¶ 400-515 (WTAC *116Dec. 15, 2000); Historic Sites Found., Inc. v. DOR, Wis. Tax Rptr. (CCH) ¶ 202-662 (WTAC Jan. 21, 1986); Experimental Aircraft Ass'n v. DOR, Wis. Tax Rptr. (CCH) ¶ 202-672 (WTAC Jan. 21, 1986). In applying due weight deference, we will affirm the Commission's interpretation of § 77.52(2)(a)2. unless we conclude another interpretation is more reasonable. Racine Harley-Davidson, 292 Wis. 2d 549, ¶ 105 (Roggensack, J., concurring).

¶ 120. In deciding whether another interpretation is more reasonable than the interpretation employed by the agency, we compare the agency interpretation with alternate interpretations. Id. This comparison requires that we construe the statute ourselves. Id. "In so doing, we employ judicial expertise in statutory construction, and we embrace a major responsibility of the judicial branch of government, deciding what statutes mean." Id.

B. Interpretation and Application of Wis. Stat. § 77.52(2)(a)2.

¶ 121. Whether the sale of tickets to Youth Concerts are taxable is driven by the interpretation of Wis. Stat. § 77.52(2)(a)2. Section 77.52(2)(a)2. states in relevant part:

(2) For the privilege of selling, performing or furnishing the services described under par. (a) at retail in this state to consumers or users, a tax is imposed upon all persons selling, performing or furnishing the services at the rate of 5% of the gross receipts from the sale, performance or furnishing of the services.
(a) The tax imposed herein applies to the following types of services:
*1172. The sale of admissions to amusement, athletic, entertainment or recreational events or places ....

¶ 122. The sale of tickets to all types of events are not taxable under Wis. Stat. § 77.52(2)(a)2. Rather, only those ticket sales to "amusement, athletic, entertainment or recreational events" are taxable. § 77.52(2)(a)2. Therefore, for example, ticket sales to religious, educational or political events are not taxable.

¶ 123. The Commission concluded that the concerts were "primarily entertainment" events, which it defined as more than 50 percent entertainment. It then concluded that since the concerts were primarily entertainment events, all concert ticket sales were taxable under Wis. Stat. § 77.52(2)(a)2.8

¶ 124. In order to determine whether there is an interpretation of Wis. Stat. § 77.52(2)(a)2. that is more reasonable than that chosen by the Commission, I must determine the meaning of § 77.52(2)(a)2. Racine Harley-Davidson, 292 Wis. 2d 549, ¶ 105 (Roggensack, J., concurring). In order to do so, I begin with the statutory words chosen by the legislature. State ex rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58, ¶ 45, 271 Wis. 2d 633, 681 N.W.2d 110.

¶ 125. In its interpretation of Wis. Stat. § 77.52(2)(a)2., the Commission considered the types of events for which ticket sales are taxable, and it concluded that the concerts are entertainment events. Therefore, I begin by examining whether the meaning of "entertainment" is ambiguous or plain on its face, as employed in § 77.52(2)(a)2. This is a question of law. Awve, 181 Wis. 2d at 822.

*118¶ 126. A statute is ambiguous when reasonably well-informed people could differ as to its meaning. Bruno v. Milwaukee Cnty., 2003 WI 28, ¶ 19, 260 Wis. 2d 633, 660 N.W.2d 656. The term "entertainment" is not defined in the statute, either as to its meaning or quantitatively. That is, the legislature has not said what the term "entertainment" means. The legislature also has not said whether 100 percent of the attributes of an event are required to constitute "entertainment" before an event is taxable as entertainment or whether some lesser quantity of entertainment attributes is sufficient.9

¶ 127. In determining what the legislature meant, words are given their common ordinary meaning, unless they are technical or specially defined words. Id., ¶ 8. A dictionary is often helpful in determining the ordinary meaning of commonly used words. Cnty. of Dane v. LIRC, 2009 WI 9, ¶ 23, 315 Wis. 2d 293, 759 N.W.2d 571.

¶ 128. An event may have attributes of differing kinds of taxable events or it may contain attributes of both taxable and nontaxable events, as did the events examined in Historic Sites and Experimental Aircraft.10 For example, a professional tennis match is an athletic event and also an entertainment event. Under my *119professional tennis match hypothetical, the sales of tickets to the tennis match would be taxable under Wis. Stat. § 77.52(2)(a)2. because both attributes of the event fall within statutory categories of taxable events.

¶ 129. However, it is just as likely that an event, such as the Youth Concerts, is entertaining and educational. In that circumstance, one attribute of the event falls within a taxable event category and the other attribute does not. Webster's Dictionary defines entertainment as "the act of diverting, amusing, or causing someone's time to pass agreeably" and educate as "fostering to varying degrees the growth or expansion of knowledge." Webster's Third New International Dictionary, 757, 723 (1961).

¶ 130. The Commission's answer to this quandary of events with taxable and nontaxable attributes is to tax admissions to an event when it characterizes the event as "primarily" falling within one of the categories listed in Wis. Stat. § 77.52(2)(a)2. In the case before us, the Commission characterizes the Youth Concerts as entertainment, which the Commission asserts occurs when more than 50 percent of the event is entertainment.11 While greater than 50 percent may equate to *120"primarily," the word "primarily" does not appear in Wis. Stat. § 77.52(2)(a)2. However, because the legislature must have been aware that events could be characterized in more than one way, the Commission's interpretation is reasonable.

¶ 131. One could also interpret Wis. Stat. § 77.52(2)(a)2. as providing that nontaxable attributes of an event, if they are more than merely incidental,12 cause the event to fall outside of the taxable categories listed in § 77.52(2)(a)2., so long as the primary purpose of the organization sponsoring the event is consistent with the nontaxable attributes of the event. This second interpretation is reasonable because § 77.52(2)(a)2. is not an over-arching tax on admissions to all public events, and the primary purpose of the sponsoring entity has been employed by the Commission in past applications of § 77.52(2)(a)2.13 Accordingly, I conclude *121that this second interpretation is reasonable as well. When there are two reasonable interpretations of a statute, it is ambiguous. See Kalal, 271 Wis. 2d 633, ¶ 47.

¶ 132. Because Wis. Stat. § 77.52(2)(a)2. is a taxing statute, the taxpayer is entitled to the benefit of any ambiguity in the statute. City of Racine v. DOR, 115 Wis. 2d 510, 512, 340 N.W.2d 741 (Ct. App. 1983). However, when an administrative agency is interpreting a statute that it was charged by the legislature with administrating and the agency has had at least some experience in doing so, its interpretation prevails unless there is a more reasonable interpretation. UFE, 201 Wis. 2d at 285-87. The Commission has been designated as the final arbiter, subject to judicial review, of the Department of Revenue's redetermination decisions, such as is now before this court based on the meaning of § 77.52(2)(a)2. Wis. Stat. § 73.01(4) (2007-08); see Gilbert v. DOR, 2001 WI App 153, ¶ 9, 246 Wis. 2d 734, 633 N.W.2d 218.

¶ 133. There is a potential tension between the maxim of statutory interpretation that provides that the taxpayer is entitled to the benefit of ambiguities in taxing statutes and the maxim that when an agency is charged with administering a statute its reasonable interpretation should prevail unless another interpretation is more reasonable. Because, as I explain below in regard to the Youth Concerts, under either interpretation those concerts are not taxable events, I am not required to resolve that potential tension.

*122¶ 134. First, I agree with part of the Commission's conclusion that ticket sales to an event that has attributes of both taxable and nontaxable events may be taxed. I so conclude because the legislature could not have been unaware that some events would have at least incidental attributes of events that it chose not to tax.

¶ 135. Accordingly, the question presented herein by my application of the two reasonable interpretations of Wis. Stat. § 77.52(2)(a)2. identified above becomes: What is the level of nontaxable attributes in the Youth Concerts and from whose perspective are these mixed-attribute events evaluated?

¶ 136. Stated otherwise, because the Youth Concerts will cause a child's knowledge to expand as the child is presented with a new musical genre or the exposure to orchestral instruments with which he is not familiar, thereby educating the child, and during the concerts the child's time will pass agreeably, thereby entertaining the child, I must determine how the Youth Concerts' taxable and nontaxable attributes are to be evaluated. See Webster's Third New International Dictionary, 723, 757 (1961) (defining educate and entertainment). In so determining, I examine the Youth Concerts' attributes first from the perspective of the Milwaukee Symphony, the entity that presented the concerts, and then from the perspective of the educators who took their classes to the concerts during the school day, based in part on the way in which the Youth Concerts were marketed.

1. Milwaukee Symphony's perspective

¶ 137. Milwaukee Symphony was incorporated for educational purposes.14 Milwaukee Symphony's Articles of Incorporation, as restated in 1988, set out its purposes as follows:

*123The purposes for which the Corporation is organized are educational, to present classical and other orchestral music, performed with the highest degree of artistic excellence, to promote and develop public appreciation of and to educate the public in such music, and to engage in any other lawful activity within the purposes for which corporations may be organized under Chapter 181 of the Wisconsin Statutes.15

Milwaukee Symphony maintains an "Education Office" and employs a "Director of Education."

¶ 138. Milwaukee Symphony also approached the Youth Concerts in a way to facilitate educational opportunities for the children. For example, in advance of the concerts, Milwaukee Symphony offered teachers whose classes would be attending concerts three different types of materials that teachers could use to prepare their students. First, Milwaukee Symphony offered teaching instruction materials that included "deeper discussions about the themes of the concerts, the music and the composers, and suggestions for class discussion, as well as inter-disciplinary publications relating to the music."16 Second, Milwaukee Symphony offered docent classroom presentations, in which a trained docent visited the teacher's classroom to prepare the students for the upcoming concert.17 Third, for a small fee, cassette tapes of the music were available.18

*124¶ 139. Finally, after the High School and Middle School concerts, Milwaukee Symphony distributed questionnaires to the teachers to complete.19 The questionnaires asked which of the instructional materials provided were "used to prepare students for the concert;" to what extent Milwaukee Symphony met its objectives in presenting the concerts;20 whether the materials were appropriate for use by students, teachers and for lesson plans; and whether the teacher created lesson plans as an outgrowth of the materials and concert. Each of these questions demonstrates Milwaukee Symphony's desire to gauge the educational value of its concerts. Milwaukee Symphony requested that the questionnaires be returned to its "Education Office," care of "Sue Medford, MSO Education Concert Manager."

2. Perspective of the teachers

¶ 140. The teachers whose classes were to attend a concert were to request the offered materials. The order form for requesting such materials was on the same form the teachers used to order the concert tickets.21 Requesting any of these materials was as simple as checking a box on that form and indicating to whom the materials *125were to be sent. The order forms were returned to Milwaukee Symphony's "Education Concert Manager."22

¶ 141. The students were taken to the Youth Concerts during the school day, by their teachers, who had the materials sent by Milwaukee Symphony that described educational features of the concerts. Responses to questionnaires indicated that teachers coordinated the concerts and pre-concert materials with their classroom lesson plans to develop the students' knowledge and understanding of the music that would be presented.23 The teachers' educational focus also is evidenced by their taking time from the usual class routine to bring students to the concerts.

¶ 142. As an example of the Youth Concerts, I begin with the High School concerts. They were performed only on weekdays during school hours. The High School concerts generally featured the full symphony orchestra and consisted of a performance of "traditional classical repertoire" and other "serious music, all of which [was] connected to an overall educational theme appropriate for high school students."24 One such "educational theme" was a series of concerts entitled, "American History Through Music." "This series looked at the United States through music and the humanities from its revolutionary beginnings through 20th Century urbanization."25

¶ 143. Another example of a High School thematic concert was "The Cutting Edge" concert, which "cel*126ebrate[d] a handful of compositions that were radical departures from the music of their day. Extending back over nearly three centuries, the concert present[ed] a chronological cavalcade of orchestral music that was actually shocking to its first audiences."26 The teachers' materials included biographies of each composer and an example of why his music was on the "cutting edge" for his day.27

¶ 144. High school students received "concert program guides, some of which contained some explanations about the orchestra, background materials about the composers, glossaries, explanatory materials about the music, suggestions as to what to listen for, questions for thought and discussion."28

¶ 145. As with the High School concerts, Middle School students attended concerts linked to thematic educational experiences. For example, they were presented with "The Science of Sound" concert where "students [would] get inside that creative problem-solving process as they look[ed] through a musical 'microscope' at the most revolutionary piece in the history of symphonic music, Beethoven's Third Symphony!"29 "The Science of Sound" had a special docent program where trained volunteers came to middle schools to explain this intriguing proposition.

¶ 146. "Kaleidoscope," featuring "Children of Wisconsin" and "Children of the World," was also presented *127as a Youth Concert.30 It attempted to generate an understanding of "both our own culture and the cultures of distant peoples."31 The materials presented to the teachers explained:

[T]his concert brings to life the musics and cultures of Latin America, the Pacific Rim, Europe and Africa. Among the common elements in this music is some very exciting drumming, not only by the [Milwaukee Symphony] percussionists, but also by a Native American dancer and drummer, and Earl Thompson, an African drummer-dancer.32

¶ 147. Other Kaleidoscope materials described the composers of the music from around the world and from the United States. For example, Yagi Bushi, a Japanese composer, was presented through his music and his early beginnings as a "farmer's son."33 Anton Dvorak, a Czech composer, was described in regard to his composition that would be played.34 Leonard Bernstein, a United States composer, was presented as being "particularly effective when evoking the nervous intensity of America's modern urban life."35

¶ 148. The Middle School concerts were similar to the High School concerts except that they were geared toward a younger age group, students in grades three through eight. Individual concerts were directed at dif*128ferent pairs of such grades.36 For example, one concert may be directed at third and fourth grade students, while another concert may be directed to seventh and eighth grade students.

¶ 149. As with the High School concerts, the Middle School concerts generally featured Milwaukee Symphony's full orchestra; the same three types of pre-concert materials and docent instruction were available to teachers upon request. Concerts were likewise presented only during weekdays and during school hours.37

¶ 150. As with the High School concerts, the Middle School concerts were marketed: "1) to present live concerts which will excite young people and open them up to a world of symphonic music which they will understand and love[; and] 2) to provide music specialists and classroom teachers with program themes, relevant curriculum and effective resources which can be integrated into the total learning environment."38

¶ 151. Milwaukee Symphony's "Kinderkonzerts were directed at very young children (ages 3-8)."39 Kinderkonzerts "consisted mostly of traditional music from the classic repertoire that would be appropriate for young children," but also included popular children's songs.40 Each concert was organized around a specific *129theme that influenced the entire performance.41 The themes were meant to "facilitate the children's learning about the music."42

¶ 152. "Families that subscribed to the Kinderkonzerts received advanced 'Kinderkits,' consisting of written materials containing brief descriptions of the music and the composers, lists of suggested activities, materials for parents to read to their children regarding the music, pictures and descriptions of orchestra instruments, and lists of suggested readings."43 The Kinderkits included "Kinder Cards," which are cards featuring pictures of and information relating to musical instruments. Parents were responsible for instruction based on these materials.44

¶ 153. The Kinderkonzerts often included educational activities in addition to the concert itself. For example, concerts have featured a "Petting Zoo," in which the children were permitted to touch the musical instruments that they heard during the preceding concert.45 Other activities based on the music presented in the concerts were designed to create an interest in music among very young children.46

¶ 154. My examination of the record, as set forth in the preceding discussion, leads me to conclude that on a quantitative basis the educational attributes of the Youth Concerts exceeded the concerts' entertainment attributes. Therefore, under the Commission's test, the Youth Concerts were not "primarily entertainment." *130Furthermore, as set forth in the preceding discussion, the record conclusively establishes that the primary purpose of Milwaukee Symphony in creating and presenting the Youth Concerts was educational. Accordingly, under either reasonable interpretation of Wis. Stat. § 77.52(2)(a)2., admissions to the Youth Concerts are not taxable.

¶ 155. Although, I normally would defer to the Commission's application of its own interpretation of Wis. Stat. § 77.52(2)(a)2., I cannot do so here because the Commission's conclusion that the Youth Concerts are primarily entertainment is based on factual findings that are not supported by credible and substantial evidence in the record. See Town of Barton v. Div. of Hearings & Appeals, 2002 WI App 169, ¶ 7, 256 Wis. 2d 628, 649 N.W.2d 293 (explaining that we will affirm an agency's factual determination that is supported by credible and substantial evidence).

¶ 156. First, the Commission said, "Never were [the] concert audiences asked if they had learned anything from the [Milwaukee Symphony] concerts, or how [Milwaukee Symphony] could improve the educational value of its concerts."47 This assertion is directly contradicted by the questionnaires that were sent to the teachers who were part of the Youth Concert audiences.48 In addition to that contradictory evidence, there is no substantial and credible testimony in the record to support the Commission's statement that the Youth Concert audiences were never asked about the educational impact of the concerts.

¶ 157. Second, the Commission said, "[Milwaukee Symphony] had no structured instructional curriculum *131or specific instructional course. . . and no skill or knowledge was obtained or developed by attending concerts."49 This assertion is contradicted by the educational, instructional materials that accompanied the programs, "American History Through Music," "The Cutting Edge," "The Science of Sound," "Kaleidoscope" and "The Petting Zoo." Again, with regard to the Youth Concerts, there is no substantial and credible evidence to support the Commission's statement that no skill or knowledge was acquired. Even the very young children who attended concerts, and then participated in the Petting Zoo, were learning which sounds came from which instruments as they came on stage and touched a violin, a trumpet or some other instrument that had been played during the concert.

¶ 158. Third, the Commission stated: "There is no direct or concrete correlation between attending a concert and learning."50 This is an unreasonable statement that shows either a lack of knowledge about classical music or a misperception of what is meant by learning. To be educated in the appreciation of music is one of the pillars of a classical education. As Igor Stravinsky explained when speaking of the work of classical composer, Robert Schumann, " 'Schumann is the composer of childhood .. . because children learn some of their first music in his marvelous piano albums.'" The Houghton Mifflin Dictionary of Biography 1367 (2003) (quoting Igor Stravinsky, Themes and Conclusions (1972)).

¶ 159. Accordingly, I conclude that the Commission erred in its application of Wis. Stat. § 77.52(2)(a)2. to the Youth Concerts because: (1) it applied § 77.52(2)(a)2. based on factual findings for which there *132is not substantial and credible evidence in the record; (2) it applied § 77.52(2)(a)2. without consideration of the extensive record in regard to the educational attributes of the Youth Concerts; and (3) it applied § 77.52(2)(a)2. based on erroneous, preconceived notions about the nature of music in regard to the education of children, for which there is absolutely no support of any type in the record. Accordingly, I conclude that the Youth Concerts are not primarily entertainment events, but rather, they are educational events, wherein the sale of admission tickets are not taxable under § 77.52(2)(a)2.51

III. CONCLUSION

¶ 160. I concur with the conclusion reached by the majority opinion that tickets to Milwaukee *133Symphony's Classical and Pops Concerts are taxable under Wis. Stat. § 77.52(2)(a)2. However, because I conclude that the Youth Concerts 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. Accordingly, I dissent from that portion of the majority opinion that decides that the sale of tickets to Youth Concerts are subject to sales tax under § 77.52(2)(a)2.

¶ 161. I am authorized to state that Justice MICHAEL J. GABLEMAN joins this concurrence/ dissent.

The majority concludes that it cannot distinguish the Youth Concerts from the Classical and Pops Concerts because the Milwaukee Symphony Orchestra did not argue that the Youth Concerts are distinguishable and because it "relie[d] on the nature of the music itself as presenting primarily educational content." Majority op., ¶ 26. While the Milwaukee Symphony Orchestra may have presented its case to this court as the majority states, we are not bound by a party's concession of law or arguments. Lloyd Frank Logging v. Healy, 2007 WI App 249, ¶ 15 n.5, 306 Wis. 2d 385, 742 N.W.2d 337 (concluding an appellate court is not bound by a party's concession of law, particularly where the concession involves an erroneous interpretation of a statute). Furthermore, the Tax Appeals Commission analyzed the Youth Concerts separately from the Classical and Pops Concerts in its decision.

Milwaukee Symphony Orchestra v. DOR, Docket No. 98-S-130, slip op. at 16 (WTAC Dec. 15, 2006) (Finding of Fact No. 55) [hereinafter Commission Decision].

Id. at 21 (Finding of Fact No. 76).

Id. at 21, 24-25 (Findings of Fact Nos. 77, 86, 92).

Id. at 17 (Finding of Fact No. 61).

Majority op., ¶¶ 20-25.

Majority op., ¶ 38.

Commission Decision at 46.

The Commissioner defined "entertainment" on a quantitative basis when it concluded that the concerts were more than 50 percent entertainment and therefore "primarily entertainment" resulting in taxable ticket sales. Commission Decision at 45.

Experimental Aircraft Ass'n v. DOR, Wis. Tax Rptr. (CCH) ¶ 202-672 (WTAC Jan. 21, 1986), compared entertainment and education, which is the same context that the parties have chosen as the most relevant taxable and nontaxable attributes of Milwaukee Symphony's Youth Concerts.

The Commission asserts that Milwaukee Symphony agrees that "primarily entertainment" is the test. Commission Decision at 45. However, Milwaukee Symphony's brief in chief refers to Historic Sites Foundation, Inc. v. DOR, Wis. Tax Rptr. (CCH) ¶ 202-662 (WTAC Jan. 21, 1986), when it cites the "primarily entertainment" test. Milwaukee Symphony brief in chief at 2 n.4. "Primarily entertainment" was not the test the Commission employed in Historic Sites. Rather, the test in Historic Sites was the "primary objective" test, where the Commission focused on the primary objective of the Historic Sites Foundation in operating and maintaining the Circus World Museum. Historic Sites, Wis. Tax Rptr. (CCH) ¶ 202-662, at *12012,796. That there were performances such as Elephant Playtime in River, Unique Circus Instrument Concerts, Happy's Clown Capers where attendees were entertained, id. at 12,794, did not alter the Commission's focus on the primary objective of the Historic Sites Foundation. Furthermore, a full review of Milwaukee Symphony's brief shows that while it may accept the words, "primarily entertainment" as setting out the applicable test, Milwaukee Symphony argues that the test is applied from Milwaukee Symphony's perspective, just as the "primary objective" test in Historic Sites was applied. That is, Milwaukee Symphony's primary objective in putting on the concerts should control whether ticket sales are taxable.

See Wis. Stat. § 77.51(5) (2007-08) (defining "incidental").

See Historic Sites, Wis. Tax Rptr. (CCH) § 202-662, at 12,796; Experimental Aircraft, Wis. Tax Rptr. (CCH) § 202-672, at 12,829 (analyzing the "primary purpose" of the Experimental Aircraft Association's hosting the fly-in (the event under con*121sideration) as the test to determine whether admission tickets were taxable). This test, as the "primary objective" test of Historic Sites, focused on the motivation of the entity that sponsored the event.

Commission Decision at 4 (Finding of Fact No. 7).

Id. (emphasis added).

Id. at 22 (Finding of Fact No. 81).

The docents are individuals from the Milwaukee Symphony Orchestra League trained in presenting information about the Youth Concerts.

The cassette tapes were the only materials that required the school to pay a fee. The instruction materials and docent presentations were free of charge.

R. 5, Ex. 39 (Milwaukee Symphony questionnaires).

The five objectives, which were listed in the pre-concert materials, were: (1) "To recognize that music can suggest the sounds of nature, the city, and people who live in a certain place and time"; (2) "To understand how music can express a story"; (3) "To understand that music can express the cultural heritage of a specific country"; (4) "To examine how music creates a sense of motion"; and (5) "To discover how the concept of sound is used in language arts." R. 5, Ex. 39 (Milwaukee Symphony questionnaires).

R. 5, Ex. YYYYYY (1996 Middle School Concerts Teacher's Guide).

Id. (emphasis added).

See R. 5, Ex. 39 (Milwaukee Symphony questionnaires).

Commission Decision at 22 (Finding of Fact No. 79) (emphasis added).

Id.

R. 5, Ex. KKKKKK (1992-93 High School Concerts Teacher's Guide).

Id.

Commission Decision at 22 (Finding of Fact No. 80).

R. 5, Ex. YYYYYY (1996 Middle School Concerts Teacher's Guide).

R. 5, Ex. MMMMMM (1993-94 Youth Concerts Program Guide for Teachers).

Id.

Id.

Id.

Id.

Id.

Commission Decision at 23 (Finding of Fact No. 85).

See R. 5, Ex. 58 (1994-95 Youth Concerts brochure) (indicating that the Middle School concerts were offered at 10:30 a.m. and 12:30 p.m.); R. 5, Ex. 27 (1994-95 High School Concerts order form) (indicating that the High School concerts were offered at 10:30 a.m. and 12:30 p.m.).

R. 5, Ex. 58 (1994-95 Youth Concerts brochure).

Commission Decision at 24 (Finding of Fact No. 88).

Id.

See id. at 25 (Finding of Fact No. 91).

Id.

Id. at 24-25 (Finding of Fact No. 89).

Id.

Id. at 25 (Finding of Fact No. 90).

See id. (Finding of Fact No. 93).

Id. at 65 (emphasis added).

See R. 5., Ex. 39 (Milwaukee Symphony questionnaires).

Commission Decision at 58 (emphasis added).

Id. (emphasis added).

The Commission's brief also relies on Wis. Admin. Code § Tax 11.65(1) (Sept. 2006), which addresses admission ticket sales that are taxable. The administrative rule gives as examples of taxable ticket sales, "admissions to movies, ballets, musical and dance performances, ball games, campgrounds, circuses, carnivals, plays, hockey games, ice shows, fairs, snowmobile and automobile races, and pleasure tours or cruises." § Tax 11.65(1)(a).

There is a tension between a literal reading of § Tax 11.65(1), wherein the examples of taxable events are stated in rather absolute terms, and the Commission's interpretation of Wis. Stat. § 77.52(2)(a)2. as taxing admissions to events that are "primarily" amusement, entertainment, athletic or recreational. However, I note that an administrative rule cannot exceed the scope of the statute, see Oneida Cnty. v. Converse, 180 Wis. 2d 120, 125, 508 N.W.2d 416 (1993), and that the Commission is the final arbiter of the meaning of taxation statutes, subject only to judicial review, Gilbert v. DOR, 2001 WI App 153, ¶ 9, 246 Wis. 2d 734, 633 N.W.2d 218. Wis. Stat. § 73.01(4). Accordingly, I have no need to address the rule because I have employed the Commission's interpretation of § 77.52(2)(a)2. in the above discussion.