Does a harness-racing program qualify as a tax-exempt newspaper or periodical, or is it taxable?

Plain-English summary

Five Point Grocery (Richard and Mary Pugliese) asked whether the publication "Saratoga Harness! Official Program, Features, News" qualifies as a newspaper or periodical exempt from sales tax.

The Department held it does not qualify, so its sale is taxable.

• The exemption and its test. Section § 1115(a)(5) exempts receipts from selling newspapers and periodicals. The terms aren't defined by statute, but § 528.6 sets requirements: a newspaper must be published at short intervals, not be a book, be available to the public, and contain matters of general interest and reports of current events; a periodical must be published at least quarterly, not be a book, be publicly available, have continuity of title and content, and contain a variety of articles.
• What the publication actually is. "Saratoga Harness" is substantially race charts (past-performance data for each entry), plus track information, officials' listings, results, driver standings, and advertising-format announcements. Only about ten percent of any issue is a single signed article and a few very brief general-news items.
• The prior opinion. An earlier opinion (TSB-H-81(126)S) held the publication did not qualify for two reasons: it stated no frequency of publication, and its general-interest items were not substantial in number or length.
• Only the first defect was cured. The publication now states its publication days in the masthead (fixing the frequency problem), but the second basis remains — the general-interest content is still too slight. So it is not a newspaper or periodical under § 1115(a)(5), and receipts from its retail sale are taxable.

What this means for you

A specialized program isn't automatically an exempt periodical. The newspaper/periodical exemption turns on real general-interest news content, not just on being a regularly issued printed publication. A program that's mostly charts, schedules, and results — with only a sliver of general news — falls outside it.

Fixing one defect isn't enough if others remain. Adding a frequency statement to the masthead cured one problem, but the publication still failed the general-interest-content requirement. Every element of the definition has to be met.

If it's taxable, collect tax on the sale. Retailers selling this kind of program should treat it as taxable tangible personal property, not as an exempt newspaper or periodical.

Common questions

Q: Is a racetrack program a tax-exempt newspaper or periodical?
A: Not here. Because "Saratoga Harness" is mostly race charts with only about 10% general-interest content, it failed the § 528.6 test and its sale is taxable.

Q: The program now lists its publication days — doesn't that make it exempt?
A: No. That cured the frequency defect, but it still lacked substantial general-interest news and current-events reporting, so it remained disqualified.

Q: What does a publication need to qualify?
A: Broadly, regular publication, availability to the public, not being a book, and — critically — substantial matters of general interest and reports of current events (plus continuity and article variety for a periodical).

Citations and references

Statute and regulation:

• Tax Law § 1115(a)(5) — exemption for receipts from sales of newspapers and periodicals
• Sales and Use Tax Regulations § 528.6 — definitions of "newspaper" (general-interest and current-events content required) and "periodical"

Prior opinion referenced:

• TSB-H-81(126)S — earlier opinion holding the same publication did not qualify (no stated frequency; general-interest items not substantial)

Source

• Landing page: https://www.tax.ny.gov/pubs_and_bulls/advisory_opinions/sales_ao_1982.htm
• Opinion: https://www.tax.ny.gov/pdf/advisory_opinions/sales/a82_48s.pdf

Original ruling text

New York State Department of Taxation and Finance

Taxpayer Services Division
Technical Services Bureau

TSB-A-82(48)S
Sales Tax
December 30, 1982

STATE OF NEW YORK
STATE TAX COMMISSION
ADVISORY OPINION

PETITION NO. S811201B

On December 1, 1981, a Petition for Advisory Opinion was received from Five Point
Grocery, Richard and Mary Pugliese, 42 Park Place, Saratoga Springs, New York 12866.
The issue raised is whether a certain publication constitutes a periodical or newspaper for
purposes of the sales tax imposed under Article 28 of the Tax Law.
Section 1115(a)(5) of the Tax Law exempts from the sales tax imposed under section 1105(a)
thereof receipts from the sale of newspapers and periodicals. While the terms "newspapers" and
"periodicals" are given no statutory definition, the Sales and Use Tax Regulations do contain the
following explanation:
"(b) Definition of newspaper. (1) In order to constitute a newspaper, a publication must
conform generally to the following requirements:
(i) it must be published in printed or written form at stated short intervals, usually daily or
weekly;
(ii) it must not, either singly or, when successive issues are put together, constitute a book;
(iii) it must be available for circulation to the public; and
(iv) it must contain matters of general interest and reports of current events.
(2) Notwithstanding the fact that a publication may be devoted primarily to matters of
specialized interest, such as legal, mercantile, financial, theatrical, political, religious, or
sporting matters, nevertheless, if in addition to the special interest it serves, the publication
contains general news, it is entitled to the classification of a newspaper.
. . .
(c) Definition of a periodical. (1) In order to constitute a periodical, a publication must
conform generally to the following requirements:
(i) it must be published in printed or written form at stated intervals, at least as frequently
as four times a year;

ROBERT W. BOUCHARD, ACTING COMMISSIONER
GABRIEL B. DiCERBO , DEPUTY COMMISSIONER
FRANK J. PUCCIA, DIRECTOR
TP-8 (8/82)

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TSB-A-82(48)S
Sales Tax
December 30, 1982

(ii) it must not, either singly or, when successive issues are put together, constitute a book;
(iii) it must be available for circulation to the public;
(iv) it must have continuity as to title and general nature of content from issue to issue;
(v) such issue must contain a variety of articles by different authors devoted to literature, the
sciences or the arts, news, some special industry, profession, sport or other field of endeavor.
. . . " 20 NYCRR528.6.
The publication at issue is entitled Saratoga Harness! Official Program, Features, News,
(hereinafter "Saratoga Harness") and is published in printed form by Saratoga Harness Racing, Inc.
In general, Saratoga Harness substantially consists of informational charts listing the past
performance for each entry for each of the races held in a particular meet, together with information
on how to read these charts. Additionally, general information regarding Saratoga Racetrack is
provided, such as admission costs, seating cost and capacity, lost and found, and the like. Officers
of the Saratoga Harness Racing Association, the Racing and Wagering Board, the State Tax
Commission and similar entities are listed. The results of previous race meetings are charted, as is
information concerning drivers' standings, as well as statistics on top drivers and trainers. Racing
entries for subsequent meets are also charted. Information in a general advertising format,
announcing post times, race dates, special promotions, bus schedules to the track, and the like are
also included. Publication dates for Saratoga Harness coincide with each scheduled day of racing and
each race meeting, and Saratoga Harness is apparently never published for any date when a race
meeting is not scheduled. Additionally, there is generally a single signed article relating to some
aspect of harness racing, with a portion of a single page given over to a number of very brief
"articles, some no more than a single sentence, relating to sports and general news. Taken together,
such items constitute approximately ten per cent of any given issue of Saratoga Harness. The
publication is available to the general public at approximately forty locations within New York, as
well as elsewhere in the United States and Canada. The publication does not, either singly or when
successive issues are put together, constitute a book. The publication has continuity as to title and
general nature of content from issue to issue.
Saratoga Harness was the subject of a previous Advisory Opinion (TSB-H-81(126)S), which
held that the publication did not qualify as a "newspaper or periodical" for the purposes of the
exemption provision contained in section 1115(a)(5) of the Tax Law. That Advisory Opinion held
Saratoga Harness not to qualify because it did "not contain any statement as to the frequency of
publication" and because "the items of general interest and reports of current events contained in
most of the issues submitted are not substantial either in number or in length." The only change in
the format of Saratoga Harness from its former state is that the publication now states the days on
which it is published in its masthead. The second stated basis for the conclusion contained in the

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TSB-A-82(48)S
Sales Tax
December 30, 1982

previous Advisory Opinion has not, however, been removed. Accordingly, the subject publication,
as here described, does not constitute a newspaper or periodical within the meaning of section
1115(a)(5) of the Tax Law. Receipts from the retail sale thereof are thus subject to sales tax.

DATED: December 13, 1982

s/FRANK J. PUCCIA
Director
Technical Services Bureau