Fairland Amusements, Inc. v. State Tax Commission , 110 A.D.2d 952 ( 1985 )

— Kane, J. P.

Plaintiff is a company that provides portable amusement rides, such as Ferris wheels and merry-go-rounds, at fund-raising activities sponsored by various organizations throughout New York. Plaintiff is paid by the organization involved based upon a percentage of the moneys received from sales of tickets which are purchased by the general public for the individual rides. There is no charge to the general public for admission to the site where the rides are located.

The issue presented in this case is whether defendant properly concluded that plaintiff should have collected sales taxes upon the tickets which people purchased to use plaintiff’s rides.

Tax Law § 1105 (f) (1) provides, in pertinent part, that a sales tax should apply to “[a]ny admission charge where such admission charge is in excess of ten cents to or for the use of any place of amusement in the state”. The term “place of amusement” is defined by Tax Law § 1101 (d) (10) as “[a]ny place where any facilities for entertainment, amusement, or sports are provided”, and the term “admission charge” is defined by Tax Law § 1101 (d) (2) as “[t]he amount paid for admission, including any service charge and any charge for entertainment or amusement or for the use of facilities therefor”.

In this regard, Justice Hancock stated in his dissent to Outdoor Amusement Business Assn. v State Tax Commn. (84 AD2d 950, 952, revd on dissenting mem below 57 NY2d 790) that where “the charge is not for admission or for the use of the facilities, it is not taxable” (emphasis supplied), thus indicating that if a charge is for the use of the facilities, it is taxable. Indeed, Justice Hancock specifically stated that such a taxable use of facilities included the riding of a Ferris wheel. This commonsense reasoning was adopted by the Court of Appeals and, in our opinion, applies here. Consequently, the admission charge to use the amusement rides in question would be taxable.

Judgment reversed, on the law, defendant’s motion for summary judgment granted and complaint dismissed, without costs. Kane, J. P., Main and Harvey, JJ., concur; Mikoll and Yesawich, Jr., JJ., dissent and vote to affirm in the following memorandum by Mikoll, J.