§ 1123. Exemption from tax on the charge of a roof garden, cabaret or
other similar place. The portion of the amount paid as the charge of a
roof garden, cabaret or other similar place in the state for admission
to attend a dramatic or musical arts performance at the place shall be
exempt from the tax imposed by paragraph three of subdivision (f) of
section eleven hundred five of this article but only if:

(a) the recipient states the charge for such admission separately from
all other portions of such amount;

(b) either (i) the separately stated charges for food, drink, service
and merchandise are not less on a day when such place offers such a
performance as on a day when such place does not offer such performance
or (ii) if such place is open for business only when it offers such a
performance, it separately states its charges for food, drink, service
and merchandise and such separately stated charges are comparable to
charges for comparable food, drink, service and merchandise at other
such places and restaurants and taverns in the United States census
bureau metropolitan statistical area in which such place is located or
in an immediately adjacent metropolitan statistical area or in a
comparable area if such place is not located in a metropolitan
statistical area; and

(c) such place retains and makes available to the commissioner menus
and any other statements of its charges, showing all of its charges for
food, drink, service, merchandise and admission, as part of the records
required to be kept under section eleven hundred thirty-five of this
article.