
    In the Matter of United Artists Theatre Circuit, Inc., et al., Appellants, v State Tax Commission, Respondent.
    Argued January 13, 1981;
    decided February 19, 1981
    APPEARANCES OF COUNSEL
    
      Leonard R. Rosenblatt and Robert S. Fink for appellants.
    
      Robert Abrams, Attorney-General (Francis V. Dow and Shirley Adelson Siegel of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The judgment of the Appellate Division should be reversed and the determinations of the State Tax Commission annulled.

In so deciding, essentially for reasons stated in Presiding Justice A. Franklin Mahoney’s dissenting opinion at the Appellate Division, we note that the statutory history to which that opinion refers illumines the nature of the changes effected in the then proposed section 1105 (subd [f], part [1]) of the Tax Law during its legislative course. The language of the bill as originally introduced would have excepted “motion picture admissions” from the applicable sales tax (emphasis added). However, before the proposal was enacted, the quoted phrase was altered by the substitution of the word theaters for admissions.

This deliberate change in phraseology militates against the idea that the use of the word admissions was merely a matter of semantic happenstance. Indeed, there is some evidence that before the change was effected the Legislature gave consideration to the possibility that the vitality of the moving picture theatre industry might be undermined if the exception were to be confined to exhibitions of conventional moving pictures alone. Logic therefore suggests that the change in language was intended to indicate that the determinative factor was not to be the event to which patrons gained admission, but the place where it was held. It follows that the commission’s construction — that the exclusionary clause applies only to moving pictures— runs counter to the indicia of legislative intent.

Judges Jones, Wachtler, Fuchsberg and Meyer concur; Chief Judge Cooke and Judges Jasen and Gabrielli dissent and vote to affirm for reasons stated in the memorandum at the Appellate Division (76 AD2d 995).

Judgment reversed, with costs, and the determinations of the State Tax Commission annulled in a memorandum. 
      
       Since the disputed exhibitions in this case are closed circuit telecasts of boxing matches, we have no occasion, in this memorandum, to treat with other forms of entertainment.
     