Paging Network of New York, Inc. v. Commissioner of the Department of Finance

Appellate Division of the Supreme Court of New York

Paging Network of New York, Inc. v. Commissioner of the Department of Finance

269 A.D.2d 313, 703 N.Y.S.2d 466, 2000 N.Y. App. Div. LEXIS 2032

Appellate Division of the Supreme Court of the State of New York·Decided February 24, 2000·Published

Opinion

—Determination of the New York City Tax Appeals Tribunal dated January 8, 1999, reversing, in part, the determination of an Administrative Law Judge (Marlene Schwartz, A.L.J.), dated July 29, 1997, which canceled an October 23, 1987 Notice of Determination seeking to impose New York City utility taxes upon petitioner, unanimously confirmed, the petition denied and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, New York County [Stanley Sklar, J.], entered on or about May 27, 1999) dismissed, without costs.

No basis exists to disturb respondent’s finding, premised largely upon its interpretation of State and City tax statutes, that petitioner was subject to the New York City utility tax during the years in question (see, Matter of American Tel. & Tel. Co. v State Tax Commn., 61 NY2d 393, 400; also see, Matter of Unimax Corp. v Tax Appeals Tribunal, 79 NY2d 139). Pursuant to Administrative Code of the City of New York § 11-1102, petitioner, a pager service located in New York City, falls within the group that is subject to the City utility tax. Since petitioner is no longer regulated by the Department of Public Service and does not otherwise fit within the definition of Tax Law § 186-a, General City Law § 20-b does not place limitations on respondent’s power to tax petitioner pursuant to Tax Law § 1201 for the privilege of doing business in the City of New York (Parochial Bus Sys. v Lewisohn, 35 NY2d 938).

Moreover, we find that respondent’s apportionment of the tax, so as to limit it to subscribers with New York City billing addresses, did not violate the Commerce Clause of the United States Constitution (see, Complete Auto Tr. v Brady, 430 US 274, 279).

We have considered petitioner’s remaining contentions and find them to be unavailing. Concur — Williams, J. P., Tom, Saxe and Friedman, JJ.

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—Determination of the New York City Tax Appeals Tribunal dated January 8, 1999, reversing, in part, the determination of an Administrative Law Judge (Marlene Schwartz, A.L.J.), dated July 29, 1997, which canceled an October 23, 1987 Notice of Determination seeking to impose New York City utility taxes upon petitioner, unanimously confirmed, the petition denied and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, New York County [Stanley Sklar, J.], entered on or about May 27, 1999) dismissed, without costs.

No basis exists to disturb respondent’s finding, premised largely upon its interpretation of State and City tax statutes, that petitioner was subject to the New York City utility tax during the years in question (see, Matter of American Tel. & Tel. Co. v State Tax Commn., 61 NY2d 393, 400; also see, Matter of Unimax Corp. v Tax Appeals Tribunal, 79 NY2d 139). Pursuant to Administrative Code of the City of New York § 11-1102, petitioner, a pager service located in New York City, falls within the group that is subject to the City utility tax. Since petitioner is no longer regulated by the Department of Public Service and does not otherwise fit within the definition of Tax Law § 186-a, General City Law § 20-b does not place limitations on respondent’s power to tax petitioner pursuant to Tax Law § 1201 for the privilege of doing business in the City of New York (Parochial Bus Sys. v Lewisohn, 35 NY2d 938).

Moreover, we find that respondent’s apportionment of the tax, so as to limit it to subscribers with New York City billing addresses, did not violate the Commerce Clause of the United States Constitution (see, Complete Auto Tr. v Brady, 430 US 274, 279).

We have considered petitioner’s remaining contentions and find them to be unavailing. Concur — Williams, J. P., Tom, Saxe and Friedman, JJ.

Paging Network of New York, Inc. v. Commissioner of the Department of Finance, 269 A.D.2d 313, 703 N.Y.S.2d 466, 2000 N.Y. App. Div. LEXIS 2032 (N.Y. Ct. App. 2000).

Pincite

269 A.D.2d 313 (Paging Network of New York, Inc. v. Commissioner of the Department of Finance) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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