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BURGER KING v. TAX COMM

70 A.D.2d 447 (1979)

In the Matter of Burger King, Inc., Appellant-Respondent, v. State Tax Commission, Respondent-Appellant. (Proceeding No. 1.) In the Matter of Davmor Industries, Inc., Respondent, v. State Tax Commission, Appellant. (Proceeding No. 2.) In the Matter of Edgmor, Inc., Respondent, v. State Tax Commission, Appellant. (Proceeding No. 3.)

Appellate Division of the Supreme Court of the State of New York, Third Department.

November 8, 1979

Attorney(s) appearing for the Case

Nixon, Hargrave, Devans & Doyle (Sterling L. Weaver of counsel), for appellant-respondent in Proceeding No. 1 and respondents in Proceedings Nos. 2 and 3.

Robert Abrams, Attorney-General (Maurice K. Peaslee and Shirley Adelson Siegel of counsel), for respondent-appellant in Proceeding No. 1 and appellant in Proceedings Nos. 2 and 3.

Gerard A. Navagh for New York State Restaurant Association, Inc., amicus curiae.

Blank, Rome, Comisky & McCauley (Ronald H. Surkin and Leonard P. Nalencz of counsel), for McDonald's System, Inc., amicus curiae.

MAHONEY, P. J., and SWEENEY, J., concur with MIKOLL, J.; STALEY, JR., and KANE, JJ., concur in part and dissent in part in a separate opinion by STALEY, JR., J.

MIKOLL, J.

The material facts are not in dispute. Burger King, Inc., a fast food restaurant operator, during the period of assessment, purchased paper products consisting of wrappers for hamburgers, cups for coffee and other drinks, sleeves for french fries and containers for milk shakes and transferred these paper products to its customers, along with the appropriate food product, for a single price. Burger...

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