Island Recycling Corp. v New York State Dept. of Taxation & Fin.

Island Recycling Corp. v New York State Dept. of Taxation & Fin. 2006 NY Slip Op 08928 [34 AD3d 739] November 28, 2006 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 17, 2007

Island Recycling Corp. et al., Appellants,
v
New York State Department of Taxation and Finance et al., Respondents.

—[*1]In an action, inter alia, for a judgment declaring that Tax Law § 1105 (c) (5) is unconstitutional as applied to the plaintiffs, the plaintiffs appeal from an order and judgment (one paper) of the Supreme Court, Suffolk County (Cohalan, J.), entered June 3, 2005, which, among other things, granted the defendants' cross motion for summary judgment declaring that Tax Law § 1105 (c) (5) and 20 NYCRR 527.7 (a) are not unconstitutional as applied to the plaintiffs.

Ordered that the order and judgment is affirmed, with costs.

Despite the plaintiffs' claims, the defendants' interpretation of Tax Law § 1105 (c) (5) was neither irrational nor unreasonable (see Matter of Chesterfield Assoc. v New York State Dept. of Labor, 4 NY3d 597, 605 [2005]; Matter of Cecos Intl. v State Tax Commn., 71 NY2d 934 [1988]; Matter of Rochester Gas & Elec. Corp. v New York State Tax Commn., 71 NY2d 931 [1988]). Furthermore, there is no merit to the plaintiffs' claim that the defendants' determination failed to adhere to prior agency precedent (see 20 NYCRR 2375.11), or to their claim that the tax was not fairly apportioned (see Oklahoma Tax Comm'n v Jefferson Lines, Inc., 514 US 175 [1995]; Matter of CWM Chem. Serv., 2003 NY Tax LEXIS 307 [DTA No. 818757]).

The plaintiffs' remaining contentions either are without merit or are not properly before this Court. Adams, J.P., Rivera, Skelos and Lifson, JJ., concur.