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INFORMATION PROVIDED TO A SUPERMARKET CHAIN ABOUT COMPETITORS’ PRICES IS NOT “PERSONAL AND INDIVIDUAL” WITHIN THE MEANING OF TAX LAW 1105, THEREFORE THE REPORTS OF THAT INFORMATION ARE SUBJECT TO SALES TAX (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Feinman, over a concurrence and two dissenting opinions, reversing the Appellate Division, determined that a supermarket chain, Wegmans, which pays an outfit, RetailData, for information about competitors’ prices, must pay sales tax for that information. Wegmans argued the information was “personal and individual” and therefore not taxable under Tax Law 1105:

Tax Law § 1105 (c) (1) imposes a sales tax on certain information services, “but exclud[es] 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 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. There is nothing about the information itself that is personal or individual in nature. RetailData simply collected the prices of products at grocery stores and compiled that information into reports which it furnished to Wegmans. The Tribunal rationally concluded that the information RetailData furnished to Wegmans was not personal or individual in nature because it was collected from prices on supermarket shelves, which are publicly available, widely-accessible, and not confidential. Moreover, in these circumstances, it was rational for the Tribunal to determine that RetailData’s customization of the publicly-available information it collected from supermarket shelves into a report format did not render the furnished information personal or individual in nature … . Matter of Wegmans Food Mkts., Inc. v Tax Appeals Trib. of the State of N.Y., 2019 NY Slip Op 05184, CtApp 6-27-19

 

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