Empire State Building Co. v. New York State Department of Taxation & Finance, 81 N.Y.2d 1002

Empire State Building Co. v. New York State Department of Taxation & Finance

81 N.Y.2d 1002 | NY | 1993

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

Plaintiffs tenants’ payment of an Electricity Rent Inclusion Factor (ERIF) was for electric service provided only as an incident to the rental of commercial premises in plaintiffs building and not as part of "separate transactions which have *1004as their primary purpose the furnishing of utilities or utility services” (Debevoise & Plimpton v New York State Dept. of Taxation & Fin., 80 NY2d 657, 661). The taxing of the ERIF payments as a sale of utility services under Tax Law § 1105 (b) was therefore improper.

Chief Judge Kaye and Judges Simons, Titone, Hancock, Jr., and Bellacosa concur; Judge Smith taking no part.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, in a memorandum.