Rear of New York State Court of Appeals Building, Albany. Photo: Daniel Case via Wikimedia Commons

Wegmans Food Markets, a popular supermarket chain based in Rochester, won't be able to claw back more than $227,000 in sales taxes after the New York Court of Appeals affirmed a judgment assessing that amount in tax liability.

The state's highest court ruled Thursday that a series of audits paid for by Wegmans to monitor the retail prices of its competitors were subject to sales tax.

The supermarket chain has paid RetailData LLC to visit the stores of its competitors and collect information on pricing at those locations since 1995. RetailData essentially sends people where Wegmans asks and records the prices of certain items using scanners or smart phones.

RetailData, in turn, creates reports on those prices for Wegmans, which keeps them confidential to avoid disclosing its pricing strategies or monitoring activity to competitors.

Wegmans, for at least a three-year period, did not pay sales tax on that service. An audit from the state Department of Taxation and Finance audited the company's sales and use tax liability from June 2007 and February 2010 and concluded that a section of the state's tax law required Wegmans to pay sales tax on the company's pricing reports.

The state agency assessed the additional tax liability for Wegmans at $227,270 at the time. The company paid to satisfy the tax liability, but appealed to challenge the state's determination.

The company argued that a section of the state tax law, 1105 (c) (1), excluded the services from tax because the information RetailData provided was “personal and individual in nature.”

That part of the law says receipts from every sale are subject to tax, excluding, among other things, “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.”

The state Tax Appeals Tribunal, which reviews challenges to tax liability, disagreed with the company's interpretation of the law. It said that the services provided by RetailData didn't qualify for an exclusion because the data was collected from supermarket shelves and, therefore, easily accessible and in the public view.

Wegmans appealed that decision, which was reversed by the Appellate Division, Third Department. The appellate court ruled that, even though the source information was available to the public, the service RetailData provided was uniquely fitted to what Wegmans requested.

That made the services “personal or individual in nature,” the appellate court said, which would have excluded them from tax.

The Court of Appeals disagreed Thursday in its decision, which was penned by Associate Judge Paul Feinman.

“The information that RetailData compiled and the reports it furnished to Wegmans derived from a non-confidential and widely-accessible source, the supermarket shelves of Wegmans's competitors,” Feinman wrote. “There is nothing about the information itself that is personal or individual in nature.”

Associate Judge Leslie Stein agreed with the outcome of the case, but argued that Feinman's opinion would undo decades of precedent that's been used favorably by taxpayers to resolve litigation. She said the opinion would create a new rule under which “the taxpayer always loses” in New York.

That's because, Stein argued, the ruling effectively overruled the landmark decision in Matter of Grace v. New York State Tax Commission. That case has been used by the Division of Tax Appeals for decades to discuss the different burdens of proof for exemption from a tax, versus an exclusion, Stein wrote.

“The majority's declaration that New York taxpayers are now deprived of a protection they have long enjoyed—in a misguided attempt to resolve confusion in the lower courts that never existed—is not only wrong, but completely unnecessary,” Stein wrote.

Associate Judge Rowan Wilson, in a lengthy dissenting opinion, criticized the majority for not taking a deeper dive into the actual statute Wegmans used to support its position. He wrote that the majority had not tried to interpret what the Legislature meant by “personal or individual,” which could have changed the matter altogether.

“The statute says nothing about the confidentiality or public availability of the information,” Wilson wrote. “It would have been simple enough for the legislature to have written 'confidential'; it did not do so.”

After a thorough explanation of the legislative history of the statute, and an interpretation of what was intended by lawmakers, Wilson argued that the services provided to Wegmans by RetailData actually fit the definition of “personal or individual in nature.”

“RetailData's [competitive price audits], as a matter of 'pure statutory interpretation and analysis,' fell into the exclusion for information services that were 'personal or individual in nature,'” Wilson wrote. “Each CPA was tailored to Wegmans' precise requirements; the data generated was preserved solely for Wegmans' use and by its nature was not a standardized product that could be sold to others.”

Wegmans was represented before the Court of Appeals by Jeffrey Harradine, a partner at Ward Greenberg Heller & Reidy in Rochester. Harradine did not immediately return a call for comment. A spokeswoman for Wegmans declined to comment.

The state Department of Taxation and Finance did not immediately comment on the decision.

Chief Judge Janet DiFiore and Associate Judges Jenny Rivera and Michael Garcia signed onto Feinman's opinion. Associate Judge Leslie Stein concurred in a separate opinion. Associate Judges Eugene Fahey and Rowan Wilson dissented in separate opinions.

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