United Parcel Service, Inc. v. Tax Appeals Tribunal , 949 N.Y.S.2d 826 ( 2012 )

McCarthy, J. (concurring).

I agree partially with the majority and partially with the dissent, requiring me to concur with the majority’s outcome. The majority annuls the determination of respondent Tax Appeals Tribunal and finds that petitioner was entitled to the claimed tax exemption because the items at issue could be classified as promotional materials in two ways: as “other related tangible personal property” in general, and under the enumerated category of “free gifts” (Tax Law § 1101 [b] [12]). The dissent concludes that petitioner did not meet its burden on the general or free gifts aspect. As long as the items qualify under either aspect of the exemption, petitioner prevails and the determination must be annulled.

I agree with the dissent that petitioner did not meet its burden of showing that its interpretation of the phrase “other related tangible personal property” was the only possible rational interpretation that could be applied to the disputed items. On the other hand, I agree with the majority that the aspect of the Tribunal’s determination finding that the disputed items were not free gifts is irrational. Because I agree with the majority on that aspect, and petitioner is entitled to the exemption if the items qualify as promotional materials under any portion of the definition of that term, I concur that the Tribunal’s determination, as challenged, must be annulled.