Celestial Food of Massapequa Corp. v. New York State Tax Commission

opinion of the court

Main, J.

The facts are not disputed. After the decisions by the Court of Appeals in Matter of Burger King v State Tax Comm. (51 NY2d 614) and Servomation Corp. v State Tax Comm. (51 NY2d 608), which held that paper or plastic packaging materials (e.g., containers, cups, lids, wrappings, sleeves) are not subject to sales tax when purchased by fast food restaurants from suppliers, the Technical Service Bureau of the State Department of Taxation and Finance issued TSB-M-81(12)S, which was subsequently promulgated as 20 NYCRR 528.20 (d). This regulation, as revised and in…