Opinion
Decided February 19, 1987
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department.
Fred B. Wander, Thomas F. Gleason and Salvatore D. Ferlazzo for Audell Petroleum Corporation, appellant.
Roy F. Hutton for Ortep Fuel Oil Corporation, appellant.
Nicholas J. Damadeo for Skaggs-Walsh, Inc., appellant.
Robert Abrams, Attorney-General (Wayne L. Benjamin, O. Peter Sherwood and Peter H. Schiff of counsel), for respondent.
MEMORANDUM.
In each proceeding, the judgment of the Appellate Division should be reversed, with costs, the petition granted, the determination of the State Tax Commission annulled, and the matter remitted to Supreme Court, Albany County, with directions to remand to the State Tax Commission for further proceedings in accordance with this memorandum.
Tax Law § 1105 (c) (1) provides that there shall be a tax imposed upon:
"(c) The receipts from every sale, except for resale, of the following services:
"(1) The furnishing of information by printed, mimeographed or multigraphed matter or by duplicating written or printed matter in any other manner, including the services of collecting, compiling or analyzing information of any kind or nature and furnishing reports thereof to other persons, but excluding the furnishing of information which is personal or individual in nature and which is not or may not be substantially incorporated in reports furnished to other persons".
As the statute and the implementing regulations (see, 20 N.Y.CRR 527.3 [a] [1]-[3]) indicate, it is the sale of the service of furnishing information by a business whose function it is to collect and disseminate information which is taxable under Tax Law § 1105 (c) (1) and not the mere sale of information.
In each of these proceedings challenging sales and use tax assessments arising out of bulk sales of the assets of fuel oil distribution businesses, the State Tax Commission assessed a tax under section 1105 (c) (1) on the transfer of the customer list of each fuel oil business sold. The seller in each sale, however, was not engaged in the business of furnishing information and the record indicates that the seller did not prepare the customer list at the purchaser's request. The transfer of the customer lists, therefore, under the circumstances presented here, were not, contrary to Matter of Long Is. Reliable Corp. v Tax Commn. ( 72 A.D.2d 826, lv denied 49 N.Y.2d 707), taxable under section 1105 (c) (1) (cf. Matter of Mertz v State Tax Commn., 89 A.D.2d 396 [sale of "direct mail" mailing list taxable under § 1105 (c) (1)]; Names in the News v New York State Tax Commn., 75 A.D.2d 145 [same]; Matter of Drey Co. v State Tax Commn., 67 A.D.2d 1055 [same], lv denied 47 N.Y.2d 708).
Chief Judge WACHTLER and Judges SIMONS, KAYE, ALEXANDER, TITONE, HANCOCK, JR., and BELLACOSA concur in memorandum.
In each case: On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 N.Y.CRR 500.4), judgment reversed, etc.