New York State Ass'n of Tobacco & Candy Distributors, Inc. v. New York State Tax Appeals Tribunal

159 A.D.2d 132, 559 N.Y.S.2d 592, 1990 N.Y. App. Div. LEXIS 8613

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 19, 1990
• Status: Published

Opinions

OPINION OF THE COURT

Casey, J.

At issue on this appeal is whether petitioner has standing to seek CPLR article 78 review of a final determination of respondent State Tax Appeals Tribunal rendered in an administrative proceeding to which petitioner was not a party. Supreme Court held that petitioner lacked standing, and the petition was dismissed. We affirm.

The members of Target Cooperative Buying Association, Inc., a cooperative corporation consisting of a number of individual merchants who sell cigarettes at retail (hereinafter respondent retailers), filed applications with the Department of Taxation and Finance seeking to register themselves as a chain store in order to obtain certain favorable treatment accorded chain stores by the Cigarette Marketing Standards Act (Tax Law art 20-A). The Department’s Division of Taxation denied the application on the ground that the corporation was not operating in compliance with the Cooperative Corporations Law. Respondent retailers pursued the administrative appeal process provided for in Tax Law article 40, which culminated in a final determination in their favor by the Tax Appeals Tribunal granting their applications to register as a chain store.

Petitioner, a corporation comprised of approximately 70 wholesale cigarette distributors, commenced this CPLR article 78 proceeding to review the determination of the Tax Appeals Tribunal. According to petitioner, the determination to allow respondent retailers to register as a retail chain violates the legislative intent of the Cigarette Marketing Standards Act and will ultimately lead to the destruction of the wholesale cigarette distribution industry in the State.

In Matter of Dairylea Coop. v Walkley (38 NY2d 6, 11-12), the Court of Appeals applied the zone of interest test and explained: "[W]here a statute reflects an overriding legislative purpose to prevent destructive competition, an injured competitor has standing to require compliance with that statute * * *. This is particularly true where * * * the agency is authorized to act without any hearing whatsoever. To deny petitioner standing would invite the subversion of the legislative goal of maintaining a healthy competitive atmosphere in the * * * industry”.

The enactment of Tax Law article 20-A includes the following statement of legislative intent: "The legislature hereby finds that it is necessary to regulate and control the sales price of cigarettes within the state at the wholesale and retail levels for the purpose of stabilizing the cigarette industry in New York state” (L 1985, ch 897, § 1). Petitioner appears to claim that the determination to register respondent retailers as a retail chain will destabilize the wholesale cigarette industry in New York, and that as the representative of nearly 80% of the wholesalers in New York it is within the zone of interest and, therefore, has standing to challenge the determination. Respondents concede that the right to challenge administrative action has been enlarged by the Court of Appeals in recent years, but they point out that in so doing the court has "carefully examined the relevant statutes and precedents, ascertaining the presence or absence of a legislative intention to preclude review. Only where there is a clear legislative intent negating review * * * or lack of injury in fact * * * will standing be denied” (Matter of Dairylea Coop. v Walkley, supra, at 11). According to respondents, clear legislative intent negating review can be found in Tax Law § 2016, which provides that "[a] decision of the tax appeals tribunal * * * shall finally and irrevocably decide all the issues which were raised in proceedings before the division of tax appeals upon which such decision is based unless * * * the petitioner who commenced the proceeding petitions for judicial review in the manner provided by [CPLR article 78]”.

We conclude that Tax Law § 2016 does not reveal the necessary clear legislative intent negating review by an aggrieved person who was not, and could not, be a party to the administrative appeal process. Had the Division of Taxation granted the applications of respondent retailers in the first instance, there would have been no administrative review (see, Tax Law § 2008) and Tax Law § 2016 would have been inapplicable. The question of petitioner’s standing, then, would had to have been resolved without reference to Tax Law §2016, and we see no reason to do otherwise merely because respondent retailers had to go through the administrative review process to obtain approval of their applications. In short, we see nothing in Tax Law §2016 that reveals an intent to deprive standing to a petitioner who might otherwise have standing merely because another party was required to pursue the administrative appeal process in order to obtain the approval which allegedly affects that petitioner’s zone of interest.

Despite our rejection of respondents’ reasoning, which was adopted by Supreme Court, we agree with the conclusion that petitioner lacks standing to maintain this proceeding. In Matter of Dairylea Coop. v Walkley (supra), the petitioner was a competitor of the party who had received the approval at the administrative level, and the Court of Appeals found "no issue as to the deleterious effect on [the petitioner] of the commissioner’s action” (supra, at 9). Petitioner herein is not a competitor of respondent retailers; rather, it represents a number of wholesalers who are engaged in a different level of the cigarette distribution industry. There is no claim that the singular decision to grant chain store status to the approximately 20 respondent retailers herein has had or will have a significant impact on any wholesaler in particular or the wholesale industry in general. Rather, it is petitioner’s theory that other retailers, seeking to take advantage of the challenged ruling, will form cooperative corporations and register as chain stores, and that eventually a substantial majority of retailers will obtain the benefits of being treated as a chain store, leading to the demise of the wholesale cigarette distribution industry in New York. It is well established that "the administrative decision for which review is sought must be shown to have a harmful effect upon the party asserting standing” (Matter of City of New York v City Civ. Serv. Commn., 60 NY2d 436, 443). Since petitioner is not presumptively aggrieved by the determination of the Tax Appeals Tribunal, it must demonstrate that it has suffered "special injury” before it can be accorded standing to review the determination (Matter of Mobil Oil Corp. v Syracuse Indus. Dev. Agency, 76 NY2d 428, 433).

Petitioner mistakenly relies upon Matter of Dudley v Kerwick (52 NY2d 542), wherein the Court of Appeals held that individual taxpayers may bring a CPLR article 78 proceeding to challenge wholesale exemptions from taxation granted to other property owners. In so doing, the court focused on the scope of the allegedly wrongful conduct and the resulting harm in concluding that "[w]hen an assessor grants exemption from taxation in wholesale fashion indicating that he has arrogated this legislative power [to create exemptions] to himself, he cannot cloak himself with protection surrounding individual discretionary decisions, and relief by way of an article 78 proceeding will lie” (supra, at 551). Petitioner herein seeks only to review an individual discretionary decision to grant chain store status to respondent retailers. In contrast to Matter of Dudley v Kerwick (supra, at 552), there is no claim here of a broad conspiracy involving arbitrary and bad-faith abuses of the administrative process.

Nor is there any merit in petitioner’s reliance on Tax Law § 484 (b) (1), which authorizes an action in Supreme Court to prevent a violation of any of the provisions of Tax Law article 20-A by any person injured by the violation. As petitioner has not sufficiently alleged harm to have standing under the zone of interest test, it clearly is not injured within the meaning of the statute. In any event, the allegedly erroneous administrative decision to register respondent retailers as a chain store is not, in our view, a violation within the meaning of Tax Law § 484 (b) (1).

Because petitioner did not participate in the administrative tax appeal procedure governed by Tax Law article 40, we are of the view that petitioner was not bound by the requirement of Tax Law § 2016, which provides that a proceeding to review a decision of the Tax Appeals Tribunal be commenced in this court. Rather, pursuant to CPLR 506 (b) (2), petitioner properly brought this proceeding in Supreme Court.