MATTER OF ALBANY CALCIUM LIGHT CO., INC. v. State Tax Comm'n
Cases that cite this one
23 later published cases cite this decision.
- EchoStar Satellite Corp. v. Tax Appeals Tribunal (N.Y. 2012)
- EchoStar Satellite Corp. v. Tax Appeals Tribunal (Appellate Division of the Supreme Court of New York 2010)
- Valley Welding Supply Co. v. Chu (Appellate Division of the Supreme Court of New York 1987)
- Laux Advertising, Inc. v. Tully (Appellate Division of the Supreme Court of New York 1979)
- Matter of Shuai Yin v. State of N.Y. Dept. of Taxation & Fin. (Appellate Division of the Supreme Court of New York 2017)
- Matter of Washington Sq. Hotel LLC v. Tax Appeals Trib. of The State of New York (Appellate Division of the Supreme Court of New York 2017)
- Ianniello v. New York Tax Appeals Tribunal (Appellate Division of the Supreme Court of New York 1994)
- Waste Management of New York, Inc. v. Tax Appeals Tribunal (Appellate Division of the Supreme Court of New York 1992)
- Custom Management Corp. v. New York State Tax Commission (Appellate Division of the Supreme Court of New York 1989)
- Atlas Linen Supply Co. v. Chu (Appellate Division of the Supreme Court of New York 1989)
- Midland Asphalt Corp. v. Chu (Appellate Division of the Supreme Court of New York 1988)
- Levine v. State Tax Commission (Appellate Division of the Supreme Court of New York 1988)
- Greene & Kellogg, Inc. v. Chu (Appellate Division of the Supreme Court of New York 1987)
- Matter of U-Need-A-Roll Off Corp. v. New York State Tax Comm'n (N.Y. 1986)
- Darien Lake Fun Country, Inc. v. State Tax Commission (Appellate Division of the Supreme Court of New York 1986)
- Bloomingdale Bros v. Chu (Appellate Division of the Supreme Court of New York 1986)
- Niagara Lubricant Co. v. State Tax Commission (Appellate Division of the Supreme Court of New York 1986)
- Food Concepts, Inc. v. State Tax Commission (Appellate Division of the Supreme Court of New York 1986)
- Micheli Contracting Corp. v. New York State Tax Commission (Appellate Division of the Supreme Court of New York 1985)
- U-Need-a-Roll Off Corp. v. New York State Tax Commission (Appellate Division of the Supreme Court of New York 1985)
- Sunny Vending Co. v. State Tax Commission (Appellate Division of the Supreme Court of New York 1984)
- Chemical Bank v. Tully (Appellate Division of the Supreme Court of New York 1983)
- Burger King, Inc. v. State Tax Commission (New York Supreme Court 1978)
This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.
Opinion
OPINION OF THE COURT
Memorandum.
The order of the Appellate Division should be reversed insofar as appealed from, with costs.
On this appeal by the State Tax Commission the only question before us is whether the cylinders, which the petitioner uses to deliver gas to its customers, were purchased for resale so as to be exempt from the sales tax at the time of purchase (Tax Law, § 1105, subd [a]; § 1101, subd [b], par [4]).
Initially we note that the statute defines a sale (Tax Law, § 1101, subd [b], par [5]) and does not separately define a resale. It appears then that the Legislature does not consider a sale and resale as discrete concepts and thus a purchaser who acquires an item for the purpose of sale or rental (Tax Law, § 1101, subd [b], par [5]) purchases it for resale within the meaning of the statute. We also recognize that a company which furnishes gas to its customers in cylinders must, if it is to remain solvent, include and recover the cost of the cylinder in the rate charged for the gas. It does not follow, however, that when the gas is delivered in the cylinder the customer is renting the cylinder absent a specified charge for that rental. *988 It should not fall within judicial "decisional analysis” to determine what is or is not a rental (cf. Matter of Crossman Cadillac v Board of Assessors, 44 NY2d 964, decided herewith).
Demurrage charges for retaining the cylinder beyond the initial 30-day period are, on the other hand, rental fees which are not included in the customers’ cost of purchasing the gas. However, the fact that the petitioner charges such a fee does not mean that the cylinders were purchased for the purpose of rental. Obviously the petitioner did not acquire the cylinders with the expectation of collecting these unusual charges which are purely incidental to its primary business of selling gas to its customers.
Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur.
Order reversed, with costs, and the determination of the State Tax Commission that petitioner’s original acquisition of metallic cylinders was not tax exempt reinstated in a memorandum.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.