Darien Lake Fun Country, Inc. v. State Tax Commission

Kane and Levine, JJ.,

dissent and vote to annul in the following memorandum by Kane, J. Kane, J. (dissenting). Tax Law § 1101 (b) (5) defines the terms "sale, selling or purchase” as: "Any transfer of title or possession or both, exchange or barter, rental, lease or license to use or consume, conditional or otherwise, in any manner or by any means whatsoever for a consideration, or any agreement therefor, including the rendering of any service, taxable under this article, for a consideration or any agreement therefor”. In addition, 20 NYCRR 526.7 (a) (4) provides that the term "sale” includes, among other things, "the transactions enumerated in subdivision (d), (e) or (f) of section 1005 of the Tax Law”. Tax Law § 1105 (f) (1) concerns "admission charges”.^* Accordingly, petitioner’s sale of a ticket constitutes a "sale” of the facilities to its patrons as a transaction "enumerated in subdivision * * * (f) of section 1105 of the Tax Law” (20 NYCRR 526.7 [a] [4]). Since petitioner is "selling” its facilities to its customers, its acquisition of the facilities in question is for resale and thus nontaxable (see, Tax Law § 1101 [b] [4] [i] [A]; § 1105 [a]). The facilities in question here were not incidental to the taxpayer’s primary business (see, Matter of Albany Calcium Light Co. v State Tax Commn., 44 NY2d 986, 988).

We would therefore grant the petition and annul respondent’s determination.

* It is undisputed that the amounts charged by petitioner for use of its facilities are admission charges within the meaning of Tax Law § 1105 (f) (1).