Is a bimonthly industry newsletter an exempt periodical, and does having all its articles written by one person change the answer?

Plain-English summary

Edward A. Donoghue Associates, Inc. proposed to publish Elevator Code News, a bimonthly newsletter covering codes, standards, and regulations affecting the vertical-transportation (elevator) industry — revisions, calls for comment, interpretations, proposals, and new publications. Subscriptions would be sold to the general public, and no issue (singly or bound together) would be a book. The company hadn't yet decided whether all articles would be written by its president, Mr. Donoghue, or whether other writers would contribute. It asked whether the newsletter is an exempt periodical under Tax Law § 1115(a)(5).

The Department's answer turned on who writes the articles.

• A newsletter can be a periodical. Under 20 NYCRR § 528.6(c), a periodical must be published at least four times a year, not constitute a book, be available to the public, have continuity of title and general content, and contain a variety of articles by different authors. A newsletter qualifies if it meets these standards; one with unsigned articles prepared by a staff of writers is treated as having "different authors."
• If different authors write it — EXEMPT. As long as Elevator Code News is written by a staff of writers who originally prepare the articles, it meets the criteria and its sale is exempt under § 1115(a)(5).
• If one person writes all of it — TAXABLE. If every article is authored by Mr. Donoghue alone, the newsletter fails the "different authors" requirement of § 528.6(c)(1)(v), does not qualify as a periodical, and its sale is not exempt.

What this means for you

The periodical exemption has a specific checklist

To sell a publication tax-free as a periodical, it has to clear every item in § 528.6(c): frequency (at least quarterly), not a book, public circulation, continuity, and — the one that trips people up — a variety of articles by different authors. Meeting four of five isn't enough.

"Different authors" can include an unsigned staff

You don't need bylines. A newsletter whose articles are unsigned but originally prepared by a staff of writers counts as having different authors. Second-class mailing status with the Postal Service is also a factor the Department will weigh.

A one-author publication won't qualify

If a single person writes the entire publication, it fails the different-authors test and loses the exemption — the sales become taxable. If you're relying on the periodical exemption, build in genuine multiple authorship.

Common questions

Q: Can a subscription newsletter be a tax-exempt periodical?
A: Yes, if it meets all of § 528.6(c) — at least quarterly, not a book, public, continuous, and with a variety of articles by different authors.

Q: Does every article need a byline to show "different authors"?
A: No. Unsigned articles prepared by a staff of writers count as different authors.

Q: What if the owner writes every article himself?
A: Then it fails the different-authors requirement and doesn't qualify as a periodical, so its sale is taxable.

Citations and references

Statutes and regulations:

• Tax Law § 1115(a)(5) — exemption for periodicals
• 20 NYCRR § 528.6(c) — definition of a periodical, including the "variety of articles by different authors" requirement and the treatment of staff-written newsletters

Source

• Landing page: https://www.tax.ny.gov/pubs_and_bulls/advisory_opinions/sales_ao_1990.htm
• Opinion: https://www.tax.ny.gov/pdf/advisory_opinions/sales/a90_15s.pdf

Original ruling text

New York State Department of Taxation and Finance

Taxpayer Services Division
Technical Services Bureau

TSB-A-90(15)S
Sales Tax
March 21, 1990

STATE OF NEW YORK
COMMISSIONER OF TAXATION AND FINANCE
ADVISORY OPINION

PETITION NO. S891227A

On December 27, 1989 a Petition for Advisory Opinion was received from Edward A.
Donoghue Associates, Inc., Shushan Road, P.O. Box 201, Salem, New York 12865.
The issue raised by Petitioner, Edward A. Donoghue Associates, Inc., is whether its proposed
publication, Elevator Code News, is a periodical for purposes of Article 28 of the Tax Law and thus
exempt from sales tax pursuant to Section 1115(a)(5) of the Tax Law.
The proposed publication, Elevator Code News, will be a bimonthly newsletter that will
report on codes, standards and regulations affecting the vertical transportation industry. Subscribers
will be informed of revisions, calls for public comment, interpretations, proposals under
consideration and the availability of new publications affecting the industry.
Subscriptions to Elevator Code News will be available for purchase by the general public and
the issues will not, either singly or when successive issues are put together, constitute a book.
Petitioner has not yet determined whether all of the articles appearing in Elevator Code News
will be written by Edward A. Donoghue, President of the Petitioner or whether selected articles will
be written by persons other than Mr. Donoghue, with the majority of articles written by him.
Section 528.6(c) of the Sales and Use Tax Regulations defines a periodical as follows:
(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;
(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; and
TP- 9 (9/88)

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TSB-A-90(15)S
Sales Tax
March 21, 1990
(v) each 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.
(2)
A publication which may be known as or considered to be a newsletter may qualify
as a periodical if it conforms to the above standards. Where a newsletter has no signed articles, but
has a staff of writers who originally prepare articles, such publication will be considered to have
articles by different authors. If a publication has been classified by the United States Postal Service
as one which is entitled to second class mailing privileges, that fact will be considered in determining
whether or not the publication is a periodical.
The proposed publication, Elevator Code News, would appear to meet all of the criteria set
forth in Section 528.6(c) of the Sales and Use Tax Regulations so as to qualify as a periodical
provided that the articles contained in the newsletter are written by a staff of writers who originally
prepare said articles. As such, its sale would be exempt from sales tax pursuant to Section
1115(a)(5) of the Tax Law.
However if all of the articles appearing in Elevator Code News are authored by Mr.
Donoghue, than the publication would fail to meet the requirement set forth in Section 528.6(c)(1)(v)
of the Sales and Use Tax Regulations that the articles be by different authors and thus it would not
qualify as a periodical. As such, its sale would not be exempt from sales tax pursuant to Section
1115(a)(5) of the Tax Law.

DATED: March 21, 1990

s/PAUL B. COBURN
Deputy Director
Taxpayer Services Division

NOTE: The opinions expressed in Advisory Opinions
are limited to the facts set forth therein.