Twin Coast Newspapers, Inc. v. State Tax Com'n

• Decision Date: 24 May 1984
• Citation: 477 N.Y.S.2d 718,101 A.D.2d 977
• Parties: In the Matter of TWIN COAST NEWSPAPERS, INC., Petitioner, v. STATE TAX COMMISSION of the State of New York, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 718

477 N.Y.S.2d 718

101 A.D.2d 977

In the Matter of TWIN COAST NEWSPAPERS, INC., Petitioner, v. STATE TAX COMMISSION of the State of New York, Respondent.

Supreme Court, Appellate Division Third Department.

May 24, 1984.

Hughes, Hubbard & Reed, New York City (Claude E. Johnston, New York City, of counsel), for petitioner.

Robert Abrams, Atty. Gen. (Francis V. Dow, Asst. Atty. Gen., of counsel), for respondent.

Before MAIN, J.P., and CASEY, WEISS, LEVINE and HARVEY, JJ.

MEMORANDUM DECISION.

Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court at Special Term, entered in Albany County) to review a determination of the State Tax Commission which sustained a sales and use tax assessment for the period March 1, 1975 to May 31, 1978.

In addition to a daily world trade newspaper and two weekly newspapers (an import and export bulletin), petitioner also publishes the Transportation Telephone Tickler (TTT), the Directory of United States Importers and the Directory of United States Exporters (Directories), the Import Special Information Service (ISIS) and the Export Information Tabulation (EXIT). Following an audit and subsequent hearing, respondent determined that sales and use taxes were due upon receipts of petitioner's sales of the TTT, Directories, ISIS and EXIT for the period March 1, 1975 through May 31, 1978, giving rise to this CPLR article 78 proceeding challenging that determination.

Petitioner's first contention, that the ISIS and EXIT reports are newspapers entitled to an exemption from sales and use taxes (Tax Law, § 1115, subd. par. ), or alternatively, as personal information services (Tax Law, § 1105, subd. par. ), is unpersuasive. Petitioner correctly asserts that the regulations which now provide comprehensive criteria for exemption qualification as newspapers or periodicals (see 20 NYCRR 528.6) were promulgated in 1979, subsequent to the period here in issue. We are not without guidance, however, for in a similar case, Matter of G & B Pub. Co. v. Department of Taxation & Fin., Sales Tax Bur. 57 A.D.2d 18, 392 N.Y.S.2d 938; mot. for lv. to app. den. 42 N.Y.2d 807, 398 N.Y.S.2d 1029, 368 N.E.2d 45, this court instructed that "resort to a test of common understanding" be used in determining whether published material qualified for sales and use tax exemption as a newspaper or periodical (id. 57 A.D.2d at 20, 392 N.Y.S.2d 938). By using this test, we can readily ascertain that the ISIS and EXIT reports are computer printout sheets composed entirely of statistical data which has been extracted from the import and export bulletins. There are no news articles or expressions of opinion, editorial or otherwise, and accordingly, respondent correctly held that they were not newspapers. Nor are we persuaded by petitioner's contention that ISIS and EXIT are exempt as information of a personal or individual nature (Tax Law, § 1105, subd. par. ) because they are compiled for specific subscribers. Petitioner admits the information is merely a distillation from the import and export bulletins in which the same information is contained and available to everyone. Although each subscriber selects the statistics he desires, the information furnished is not of the uniquely personal nature contemplated by the exemption (cf. Matter of New York Life Ins. Co. v. State Tax Comm., 80 A.D.2d 675, 436 N.Y.S.2d 380, affd. 55 N.Y.2d 758, 447 N.Y.S.2d 245, 431 N.E.2d 970 ).

Turning to petitioner's contention that the TTT and the Directories are exempt as periodicals (Tax Law, § 1115, subd. par. ), we again disagree. The same "test of common understanding" (Matter of G & B Pub. Co. v. Department of Taxation & Fin., Sales Tax Bur., supra ), when applied, shows that none are published an appropriate number of times a year or contain requisite news stories or editorial content on any single subject to qualify as a periodical. Respondent properly found that the rigid standardized format composed almost entirely of listings and statistical data does not qualify as a periodical (see Houghton v. Payne, 194 U.S. 88, 24 S.Ct. 590, 48 L.Ed. 888; Matter of Business Statistics Organization v. Joseph, 299 N.Y. 443, 87 N.E.2d 505). Great deference must be accorded respondent's construction of the term "periodical" as it...