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MARKETING INFORMATION PROVIDED TO INDIVIDUAL CLIENTS WHICH IS SUBSEQUENTLY INCLUDED IN REPORTS SOLD TO OTHERS IS SUBJECT TO SALES TAX (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Cannataro, over a comprehensive two-judge dissent, affirming the appellate division, determined the Tax Appeals Tribunal properly held that petitioner’s (Dynamic’s) information service was subject to sales tax:

Dynamic markets products to help clients measure the effectiveness of their advertising campaigns. At issue here is one such product, AdIndex, which Dynamic describes as using “a control/exposed methodology to measure the effectiveness of digital advertising at communicating brand messaging.” To create an AdIndex report, Dynamic identifies individuals who have been exposed to a client’s advertisements and then surveys them along with a control group. The survey questions are largely standardized but may contain a small number of campaign-specific questions. The results are compared to broader market data contained in MarketNorms, a database maintained by Dynamic that is also available to clients as a standalone subscription service. Dynamic then generates a report for the client which includes the survey data collected, an analysis of the “story” the data tells, as well as client-specific “insights,” “implications,” “next steps” and “recommendations” gleaned from the data. The data gathered in each AdIndex report is later incorporated into the MarketNorms database for use in reports prepared for future clients. * * *

… [T]he Tribunal’s determination that the inclusion of the information originally generated for individual clients into products eventually sold to others meets the level of substantiality under section [Tax Law] 1105 (c) (1) is reasonable and supported by substantial evidence … . Matter of Dynamic Logic, Inc. v Tax Appeals Trib. of the State of New York, 2025 NY Slip Op 02262, CtApp 4-17-25

Practice Point: Marketing information initially provided to individual clients but subsequently included in reports sold to others is subject to sales tax.

 

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