EGAN Jr., J.
Petitioner operates Nite Moves, an adult juice bar located in the Town of Colonie, Albany County, where patrons may view exotic dances performed by women in various stages of undress. The club generates revenue from four primary sources: general admission charges, which entitle patrons to enter the club, mingle with the dancers and view on-stage performances, as well as any table or lap dances performed on the open floor; "couch sales," representing the fee charged when a dancer performs for a customer in one of the club's private rooms; register sales from the nonalcoholic beverages sold to patrons; and house fees paid by the dancers to the club. Following a test period audit conducted in 2005, the Division of Taxation concluded that the door admission charges and private dance sales were subject to sales tax, which petitioner had neglected to pay,
Petitioner thereafter sought a redetermination, contending that the dances performed at the club—both on stage and in the private rooms—qualified as "dramatic or musical arts performances" and, therefore, the corresponding fees charged for those services were exempt from taxation under Tax Law § 1105 (f) (1). At the conclusion of the hearing that followed, the
It is well settled that "[s]tatutes creating tax exemptions must be construed against the taxpayer" (Matter of Federal Deposit Ins. Corp. v Commissioner of Taxation & Fin., 83 N.Y.2d 44, 49  [internal quotation marks and citation omitted]; see Matter of Charter Dev. Co., L.L.C. v City of Buffalo, 6 N.Y.3d 578, 582 ; Matter of 21 Club, Inc. v Tax Appeals Trib. of State of N.Y., 69 A.D.3d 996, 997 ; Matter of XO N.Y., Inc. v Commissioner of Taxation & Fin., 51 A.D.3d 1154, 1154-1155 ), and the taxpayer, in turn, bears the burden of establishing that the requested exemption applies (see id.; see also Matter of Lake Grove Entertainment, LLC v Megna, 81 A.D.3d 1191, 1192 ; Matter of CBS Corp. v Tax Appeals Trib. of State of N.Y., 56 A.D.3d 908, 909 , lv denied 12 N.Y.3d 703 ). To that end, it is not sufficient for the taxpayer to establish that its construction of the underlying statute is plausible; rather, the taxpayer must demonstrate that "its interpretation of the statute is . . . the only reasonable construction" (Matter of CBS Corp. v Tax Appeals Trib. of State of N.Y., 56 AD3d at 910 [internal quotation marks and citations omitted]; see Matter of Charter Dev. Co., L.L.C. v City of Buffalo, 6 NY3d at 582; Matter of Yellow Book of N.Y., Inc. v Commissioner of Taxation & Fin., 75 A.D.3d 931, 932 , lv denied 16 N.Y.3d 704 ; Matter of Astoria Fin. Corp. v Tax Appeals Trib. of State of N.Y., 63 A.D.3d 1316, 1318 ). Our standard of review in this regard is limited, and "[t]he Tribunal's determination will not be disturbed if it is rationally based and is supported by substantial evidence in the record, even if a different result could have been reached" (Matter of 21 Club, Inc. v Tax Appeals Trib. of State of N.Y., 69 AD3d at 997; see Matter of Lake Grove Entertainment, LLC v Megna, 81 AD3d at 1192). Applying these principles to the matter before us, we cannot say that the Tribunal erred in concluding that petitioner's proof as to the claimed exemptions fell short.
Tax Law § 1105 (f) (1) imposes a sales tax upon "[a]ny admission charge . . . in excess of ten cents to or for the use of any place of amusement in the state, except charges for admission to
Although the parties debate whether petitioner's club may be deemed to be the functional equivalent of a theater-in-the-round —a notion expressly rejected by the Tribunal—there is no question that the club qualifies as a place of amusement under the expansive definition set forth in Tax Law § 1101 (d) (10) and the accompanying regulation.
In our view, there can be no serious question that—at a bare minimum—petitioner failed to meet its burden of establishing that the private dances offered at its club were choreographed performances. Petitioner's expert, by her own admission, did not view any of the private dances performed at petitioner's club and, instead, based her entire opinion in this regard upon her observations of private dances performed in other adult entertainment venues. None of the DVDs entered into evidence at the administrative hearing depicted the private dances in question, and neither the generalized testimony—as offered by one of the club's dancers—that the private performances "still use[d] dance moves" nor that dancer's description of a particular move she often would employ while performing such a dance was sufficient to establish that these private performances were in fact choreographed. Given the dearth of evidence on this point, the Tribunal's conclusion that petitioner was not entitled to the requested exemption insofar as it related to the club's
We must reach a similar conclusion as to the taxability of petitioner's door admission charges. Although petitioner argues that the detailed testimony of its expert was more than sufficient to discharge its burden on this point, the Tribunal essentially discounted this testimony in its entirety, leaving petitioner with little more than the Nite Moves DVD to demonstrate its entitlement to the requested exemption. In this regard, while the Tribunal's definition of the term choreography did not differ significantly from the one employed by petitioner's expert, the Tribunal characterized the expert's interpretation of a choreographed performance as "stunningly sweeping"—deeming it to be "so broad as to include almost any planned movements [performed to] canned music." The Tribunal also noted what it construed as the expert's attempt to tailor her testimony and corresponding report to "neatly fit into the statutory exemption language" and viewed her testimony regarding the private dances offered at petitioner's club as particularly suspect, finding that "the certainty with which [the expert] holds to [her] conclusion[s], even in the absence of direct knowledge or observation of what occurs in the private areas at Nite Moves, undermine[s] her overall testimony." Credibility determinations, including the weight to be accorded to an expert's testimony, are matters that lie "solely within the province of the administrative factfinder" (Matter of Kosich v New York State Dept. of Health, 49 A.D.3d 980, 984 , lv dismissed 10 N.Y.3d 950 ; see Matter of Suburban Restoration Co. v Tax Appeals Trib. of State of N.Y., 299 A.D.2d 751, 752 ; Matter of Brahms v Tax Appeals Trib., 256 A.D.2d 822, 825 ) and, "absent any indication of the arbitrary exercise of the power thus conferred" (Matter of Pearson [Catherwood], 27 A.D.2d 598 ), we lack the authority to disturb them (see Matter of Gordon v Tax Appeals Trib., 243 A.D.2d 828, 830 ). We perceive no such arbitrariness here.
Nor can we say that the Tribunal erred in concluding that the balance of petitioner's proof was insufficient to establish its entitlement to the exemption set forth in Tax Law § 1105 (f) (1). The record reflects that the club's dancers are not required to have any formal dance training and, in lieu thereof, often rely upon videos or suggestions from other dancers to learn their craft. The one dancer who testified at the hearing did not extensively discuss the nature of the performances encompassed by the club's door admission charge, and the Nite Moves DVD does not—standing alone—demonstrate that the on-stage
Petitioner next contends that, even if the sales at issue are taxable under Tax Law § 1105 (f) (1), those very same sales are "exempt" from taxation under Tax Law § 1105 (f) (3), the latter of which imposes sales tax upon "[t]he amount paid as charges of a roof garden, cabaret or other similar place in the state." To that end, Tax Law § 1101 (d) (12) defines a "roof garden, cabaret or other similar place" as "[a]ny roof garden, cabaret or other similar place which furnishes a public performance for profit, but not including a place where merely live dramatic or musical arts performances are offered in conjunction with the serving or selling of . . . refreshment[s] . . ., so long as such serving or selling . . . is merely incidental to such performances." Even assuming, among other things, that the cited provisions actually create a true "exemption,"
The Tribunal expressly found that petitioner's club constituted a cabaret or similar place where a public performance is staged for profit, and the record as a whole certainly supports this finding. Indeed, petitioner acknowledges that it "might" be a cabaret but argues that, because it provides "live dramatic or musical arts performances" and its beverage sales are "merely incidental to such performances," it is outside the taxable reach of Tax Law § 1105 (f) (3). In this regard, although the Tribunal's decision focuses primarily upon whether the club's register sales from the nonalcoholic beverages sold qualify as incidental, implicit in its analysis of Tax Law § 1105 (f) (3)—and its corresponding rejection of petitioner's claimed "exemption" thereunder—is a finding that the dances offered at petitioner's club did not constitute "live dramatic or musical arts performances" within the meaning of the statute. Having already found that the Tribunal's resolution of that factual issue was rational, we need not proceed to consider whether petitioner's beverage sales would qualify as incidental.
Finally, we find no merit to petitioner's various constitutional
Adjudged that the determination is confirmed, without costs, and petition dismissed.
Although the validity of this particular argument ultimately need not detain us (see infra), we note in passing that neither the text of the statute itself nor the language of the relevant implementing regulation limits the definition of "dramatic or musical arts admission charge" in this fashion (see generally Matter of Cecos Intl. v State Tax Commn., 71 N.Y.2d 934, 937 ). Further, as "an example merely serves as a speculative and hypothetical illustration of a regulation, it is not entitled to the same degree of judicial deference as [the actual] regulation" (Matter of St. Joe Resources Co. v New York State Tax Commn., 132 A.D.2d 98, 102 , revd on other grounds 72 N.Y.2d 943 ; see Matter of ADP Automotive Claims Servs. v Tax Appeals Trib., 188 A.D.2d 245, 249 , lv denied 82 N.Y.2d 655 ) or, for that matter, the relevant statute.