American Theatre Press, Inc. v. Tax Commission , 86 A.D.2d 570 ( 1982 )

Order and judgment (one paper) of the Supreme Court, New York County (Stadtmauer, J.) dated May 7,1980, granting defendants’ motion for summary judgment and declaring that Playbill magazine was not a periodical within the definition of the New York State Tax Law and regulations during the period December 1, 1974 through November 20,1977 and that it is subject to the New York State sales and compensatory use tax for that period, affirmed, without costs. (Appeal No. 12423.) — Appeal from order of the Supreme Court, New York County (Stadtmauer, J.), entered September 3,1981 denying plaintiff’s motion for leave to renew and reargue is hereby unanimously deemed solely as a motion to reargue and, as such, is dismissed as nonappealable, without costs and without disbursements. Our point of difference with our dissenting brother is the applicability of section 1115 (subd [i], par [D]) of the Tax Law to Playbill for the period December 1, 1974 through November 30, 1977. Paragraph (A) of that subdivision exempts from the section imposing a sales tax (Tax Law, § 1105) “[rjeceipts from the retail sale of a shopping paper to the publisher of such publication”. After defining with precision the attributes of a “shopping paper” it provides (Tax Law, § 1115, subd [i], par [D]) “[t]he term ‘shopping paper’ shall not include mail order and other catalogs, advertising fliers, travel brochures, house organs, theatre programs” (emphasis supplied). It is undisputed that for the period in question Playbill did not meet one of the requisites required by the regulations to meet the definition of “shopping paper”, i.e., availability to the public. Hence, for that period it did not meet the standards for exemption and was properly considered a theatre program. That it thereafter altered its method of operation so as to comply with all the requisites of the regulations and obtained an advisory opinion from the Tax Department that since July 1,1979 it has qualified as a periodical exempt from State and local sales and compensating use taxes in no way exempts it from liability for the period here in question. Concur — Birns, Sullivan, Lupiano and Bloom, JJ.