PETER J. STAHLBRODT, DOING BUSINESS AS SHOPPING BAG, ET AL., APPELLANT, ET
AL., PLAINTIFF, v. COMMISSIONER OF TAXATION AND FINANCE OF THE STATE OF NEW
YORK, RESPONDENT.
92 N.Y.2d 646, 707 N.E.2d 421, 684 N.Y.S.2d 466 (1998).
December 17, 1998
3 No. 187
(98 NY Int. 0164)
Decided December 17, 1998
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This opinion is uncorrected and subject to revision before publication
in the New York Reports.
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Kevin C. Murphy, for appellant.
Julie S. Mereson, for respondent.
LEVINE, J.:
Plaintiff-appellant Stahlbrodt, during the pertinent tax assessment
period, published and distributed free of chargein Monroe County "The
Shopping Bag," a weekly advertising paper which he claimed qualified
for a sales tax exemption on purchases of printing services as a
"shopping paper" under Tax Law
§ 1115(i). After auditing The Shopping Bag, the State Division of
Taxation and Finance disagreed, and assessed sales taxes on the
printing services that plaintiff had purchased in publishing the
paper. On plaintiff's administrative challenge, the Tax Appeals
Tribunal upheld the assessment, concluding that plaintiff failed to
qualify for the exemption because The Shopping Bag did not meet the
requirement of Tax Law § 1115(i)(C) that its advertising copy not
exceed 90 percent of the printed area of each issue.
Plaintiff, along with his successor-in-interest, The Greater Rochester
Advertiser, Inc., then brought this declaratory judgment action
challenging the facial validity of Tax Law § 1115(i)(C) (also known
as "the 90 percent rule") under the First Amendment and the Equal
Protection Clause of the Fourteenth Amendment. The complaint alleged
that the 90 percent rule constitutes content-based discrimination
against certain forms of expression, singles out a small subset of
newspapers for differential tax treatment, and denies a class of
shopping papers equal protection of the laws.
SNIPPETS:
Plaintiff-appellant Stahlbrodt, during the pertinent tax assessment period, published and
After auditing The Shopping Bag, the State Division of Taxation and Finance disagreed, and
On plaintiff's administrative challenge, the Tax Appeals Tribunal upheld the assessment,
Plaintiff, along with his successor-in-interest, The Greater Rochester Advertiser, Inc., then
The complaint alleged that the 90 percent rule constitutes content-based discrimination
Plaintiff Stahlbrodt appeals as of right on constitutional grounds ), and we now modify,
On this appeal, plaintiff has restricted his attack on the constitutionality of Tax Law §
We begin with the unarguable fact that the imposition of the sales tax here is not directed
The controlling Supreme Court precedents in this case are Regan v Taxation with
Just as in the instant case, Regan and Leathers both involved challenges to differential
The Regan court distinguished between a presumptively valid legislative decision to subsidize
In Leathers v Medlock (supra) the Court upheld an exemption from a general State gross
As discussed, Regan teaches that, absent invidious discrimination, the Legislature can pick
Finally, City of Cincinnati v Discovery Network, Inc. and Arkansas Writers' Project, Inc. v
In City of Cincinnati, the Supreme Court invalidated the revocation of permits of two
Thus, the order of the Appellate Division should be modified, with costs to defendant, by
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