Cibro Petroleum Products, Inc. v. Chu

New York Court of Appeals

Cibro Petroleum Products, Inc. v. Chu

492 N.E.2d 394, 67 N.Y.2d 806, 501 N.Y.S.2d 321, 1986 N.Y. LEXIS 17525

CourtNew York Court of Appeals

DecidedMarch 20, 1986

StatusPublished

Cited by8 cases

This text of 492 N.E.2d 394 (Cibro Petroleum Products, Inc. v. Chu) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Cibro Petroleum Products, Inc. v. Chu, 492 N.E.2d 394, 67 N.Y.2d 806, 501 N.Y.S.2d 321, 1986 N.Y. LEXIS 17525 (N.Y. 1986).

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Opinion

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division. We add that the legislative history establishes that the tax was intended to "apply to all competing petroleum businesses, and, with the exception of residential fuel and petrochemical feedstocks, to virtually all petroleum sold in the State” (Memorandum of Assembly Rules Committee, 1983 NY Legis Ann, at 173; see, Governor’s Program Bill Memorandum, at 4) and, therefore, that "aviation fuel” as used in Tax Law § 300 (b) covers the fuel sold by plaintiff to [809]*809the United States Government notwithstanding that its chemical composition differs from that of commercial aviation fuel.

We have not considered the constitutional theories newly advanced before us and which plaintiff concedes were not argued to the courts below. Although within the constitutional concepts presented in the complaint, they have not been preserved for our review in view of plaintiff’s failure to argue them below (Matter of Barbara C., 64 NY2d 866; Matter of Eagle v Paterson, 57 NY2d 831; Barber v Dembroski, 54 NY2d 648; cf. Cooper v Morin, 49 NY2d 69, 78).

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr., concur.

Order affirmed, with costs, in a memorandum.

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OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division. We add that the legislative history establishes that the tax was intended to "apply to all competing petroleum businesses, and, with the exception of residential fuel and petrochemical feedstocks, to virtually all petroleum sold in the State” (Memorandum of Assembly Rules Committee, 1983 NY Legis Ann, at 173; see, Governor’s Program Bill Memorandum, at 4) and, therefore, that "aviation fuel” as used in Tax Law § 300 (b) covers the fuel sold by plaintiff to [809]*809the United States Government notwithstanding that its chemical composition differs from that of commercial aviation fuel.

We have not considered the constitutional theories newly advanced before us and which plaintiff concedes were not argued to the courts below. Although within the constitutional concepts presented in the complaint, they have not been preserved for our review in view of plaintiff’s failure to argue them below (Matter of Barbara C., 64 NY2d 866; Matter of Eagle v Paterson, 57 NY2d 831; Barber v Dembroski, 54 NY2d 648; cf. Cooper v Morin, 49 NY2d 69, 78).

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr., concur.

Order affirmed, with costs, in a memorandum.

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492 N.E.2d 394, 67 N.Y.2d 806, 501 N.Y.S.2d 321, 1986 N.Y. LEXIS 17525, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cibro-petroleum-products-inc-v-chu-ny-1986.

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