GTE Spacenet Corp. v. New York State Department of Taxation & Finance

Appellate Division of the Supreme Court of New York

GTE Spacenet Corp. v. New York State Department of Taxation & Finance

223 A.D.2d 468, 637 N.Y.S.2d 362, 1996 N.Y. App. Div. LEXIS 500

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 23, 1996

StatusPublished

Cited by2 cases

This text of 223 A.D.2d 468 (GTE Spacenet Corp. v. New York State Department of Taxation & Finance) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

GTE Spacenet Corp. v. New York State Department of Taxation & Finance, 223 A.D.2d 468, 637 N.Y.S.2d 362, 1996 N.Y. App. Div. LEXIS 500 (N.Y. Ct. App. 1996).

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Opinion

Order, Supreme Court, New York County (Alice Schlesinger, J.), entered October 19, 1994, which granted plaintiff’s motion for summary judgment, denied defendants’ cross motion for summary judgment and declared that plaintiff was not subject to taxation under Tax Law §§ 186-a and 186-c, unanimously affirmed, without costs.

The IAS Court properly determined that plaintiff was not a "utility” and therefore, not subject to Tax Law § 186-a since that term, as defined in relevant part in subdivision (2) (a) of the statute, requires the service provided to be by or through [469]*469"wires”. The service provided by plaintiff was classified by the Federal Communications Commission as communication by "radio” rather than by "wire”. Moreover, the modern technology employed by plaintiff in providing such service was not in existence at the time the statute was enacted. Although defendants assert that the Legislature clearly intended to impose a tax on all companies in competition with regulated utilities in the selling or furnishing of services such as those provided by plaintiff, where, as here, "a law expressly describes a particular act, thing or person to which it shall apply, an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded” (McKinney’s Cons Laws of NY, Book 1, Statutes § 240; see, Patrolmen’s Benevolent Assn. v City of New York, 41 NY2d 205, 208-209). A statute " 'must be read and given effect as it is written by the Legislature, not as the court may think it should or would have been written if the Legislature had envisaged all the problems and complications which might arise’ ” (Parochial Bus Sys. v Board of Educ., 60 NY2d 539, 548-549, quoting Lawrence Constr. Corp. v State of New York, 293 NY 634, 639). Concur—Rosenberger, J. P., Ellerin, Nardelli, Williams and Tom, JJ.

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Order, Supreme Court, New York County (Alice Schlesinger, J.), entered October 19, 1994, which granted plaintiff’s motion for summary judgment, denied defendants’ cross motion for summary judgment and declared that plaintiff was not subject to taxation under Tax Law §§ 186-a and 186-c, unanimously affirmed, without costs.

The IAS Court properly determined that plaintiff was not a "utility” and therefore, not subject to Tax Law § 186-a since that term, as defined in relevant part in subdivision (2) (a) of the statute, requires the service provided to be by or through [469]*469"wires”. The service provided by plaintiff was classified by the Federal Communications Commission as communication by "radio” rather than by "wire”. Moreover, the modern technology employed by plaintiff in providing such service was not in existence at the time the statute was enacted. Although defendants assert that the Legislature clearly intended to impose a tax on all companies in competition with regulated utilities in the selling or furnishing of services such as those provided by plaintiff, where, as here, "a law expressly describes a particular act, thing or person to which it shall apply, an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded” (McKinney’s Cons Laws of NY, Book 1, Statutes § 240; see, Patrolmen’s Benevolent Assn. v City of New York, 41 NY2d 205, 208-209). A statute " 'must be read and given effect as it is written by the Legislature, not as the court may think it should or would have been written if the Legislature had envisaged all the problems and complications which might arise’ ” (Parochial Bus Sys. v Board of Educ., 60 NY2d 539, 548-549, quoting Lawrence Constr. Corp. v State of New York, 293 NY 634, 639). Concur—Rosenberger, J. P., Ellerin, Nardelli, Williams and Tom, JJ.

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Bluebook (online)

223 A.D.2d 468, 637 N.Y.S.2d 362, 1996 N.Y. App. Div. LEXIS 500, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gte-spacenet-corp-v-new-york-state-department-of-taxation-finance-nyappdiv-1996.

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