Cibro Petroleum Products, Inc. v. Chu , 67 N.Y.2d 806 ( 1986 )

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 the 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.