For a tax professional, one of the most tedious requirements of the job is sifting through (on paper or online) opinions issued each week by the various courts and trying to determine which decisions are relevant to issues faced by our clients. On first glance, the recent case, In re SuperMedia, DTA No. 826264 (N.Y. Div. Tax App., May 25, 2017), appeared to be one that could be skipped since it deals with the sales tax of “yellow pages” phone books, an industry with few participants. However, the particular issue in the case, whether certain commercial delivery services qualified as “common carriers,” is of high importance to sellers and buyers of art. The narrow definition of the term advanced by the Tax Department and accepted by the administrative law judge (ALJ), is likely to dictate how art shipments will be arranged for the foreseeable future.

Publishers of yellow pages phone books such as SuperMedia make money by selling advertisements in the phone books, since the books are delivered free to consumers. SuperMedia printed the phone books out of state, and arranged for them to be delivered to consumers in New York via the U.S. Postal Service (USPS) or one of three non-governmental carriers: FedEx, PDC, or DDA.

New York generally imposes use tax on personal property used in New York for which sales tax was not previously paid. N.Y. TAX LAW §1110(a).¹ “Use” is defined to “include the distribution of … promotional materials.” N.Y. TAX LAW §1101(b)(7). However, an exception provides that “printed [promotional] materials … shall be exempt from [sales and use tax] where the purchaser of such promotional materials mails or ships such promotional materials … to its customers … , without charge to such customers … , by means of a common carrier, United States postal service or like delivery service.” N.Y. TAX LAW §1115(n)(4) (emphasis added).