Is a subscription regulatory-update newsletter an exempt periodical, or a taxable information service?

Plain-English summary

Waste Resources Associates, Inc. sells RCRA Update, a bimonthly subscription service that tracks changes to the federal hazardous-waste rules (the Resource Conservation and Recovery Act). Each mailing is mostly photocopied pages from the Federal Register plus staff summaries interpreting the EPA notices. The publisher asked whether RCRA Update is an exempt periodical.

The Department said no -- it's a taxable information service:

• Exempt periodicals are narrowly defined. Tax Law 1115(a)(5) exempts newspapers and periodicals. To qualify, a publication must (among other things) contain a variety of articles by different authors devoted to literature, the sciences, the arts, news, or some special industry, profession, or field (20 NYCRR 528.6(c)(1)).
• RCRA Update doesn't meet that test. It consists mainly of reprinted Federal Register pages and staff-written summaries of that material -- not original, internally generated articles. That makes it a compilation, not a periodical (citing the West Publishing decision on similar facts).
• Compilations that are information services are taxable. Under 20 NYCRR 528.6(c)(3)(ii), listings and compilations that constitute information services are expressly not periodicals. So RCRA Update is a taxable information service under Tax Law 1105(c)(1) -- it furnishes information not personal or individual in nature -- and its sales are subject to sales and use tax.

What this means for you

Publishers of newsletters and update services

Calling something a "newsletter" doesn't make it an exempt periodical. New York looks at content: exempt periodicals carry a variety of original articles by different authors. A product built mostly from reprinted source documents and summaries is treated as a compilation / information service and is taxable.

The line is original articles vs. compiled information

A staff of writers producing original articles can qualify a newsletter as a periodical. But summarizing and reprinting others' material -- regulations, filings, market data -- tends to fall on the taxable information-service side (see the RCRA Update, stock-report, and securities-compilation examples in the regulation).

Second-class mailing status can help but isn't decisive

The regulation says U.S. Postal Service second-class mailing classification is a factor to consider, but here the content itself defeated periodical status.

Common questions

Q: We publish on a regular schedule -- doesn't that make us a periodical?
A: Regular publication is only one requirement. You also need a variety of original articles by different authors. A schedule alone won't qualify a compilation of reprinted material.

Q: Our staff writes the summaries -- aren't those "articles by different authors"?
A: The Department found the summaries were subordinate to reprinted Federal Register pages, so the product read as a compilation/information service rather than a periodical.

Q: Why is an information service taxable?
A: Tax Law section 1105(c)(1) taxes the furnishing of information by printed or duplicated matter, including collecting, compiling, or analyzing information and furnishing reports -- unless the information is personal and individual in nature, which this was not.

Q: Can I rely on this opinion?
A: It binds the Department only as to the petitioner and the facts described. Treat it as guidance and confirm your own facts.

Citations and references

• Tax Law section 1105(a) (sales tax on retail sales of tangible personal property)
• Tax Law section 1105(c)(1) (sales tax on the furnishing of information services)
• Tax Law section 1115(a)(5) (exemption for newspapers and periodicals)
• 20 NYCRR 528.6(c)(1) (definition of a periodical)
• 20 NYCRR 528.6(c)(3)(ii) (listings/compilations that are information services are not periodicals)
• West Publishing Co., State Tax Comm., Feb. 11, 1985, TSB-H-85(38)S
• Generic Stock Investment Service, Inc., Adv. Op., Sept. 13, 1988, TSB-A-88(44)S

Source

• Landing page: https://www.tax.ny.gov/pubs_and_bulls/advisory_opinions/sales_ao_1993.htm
• Opinion: https://www.tax.ny.gov/pdf/advisory_opinions/sales/a93_48s.pdf

Original ruling text

New York State Department of Taxation and Finance

Taxpayer Services Division
Technical Services Bureau

TSB-A-93 (48)S
Sales Tax
September 1, 1993

STATE OF NEW YORK
COMMISSIONER OF TAXATION AND FINANCE
ADVISORY OPINION

PETITION NO. S930506A

On May 6, 1993 a Petition for Advisory Opinion was received from Waste Resources
Associates, Inc., 2576 Seneca Avenue, Niagara Falls, New York 14305.
The issue raised by Petitioner, Waste Resources Associates, Inc., is whether Petitioner's
publication, RCRA Update, qualifies as a periodical under the provisions of Section 1115(a)(5) of
the Tax Law and Section 528.6(c) of the Sales and Use Tax Regulations.
The RCRA Update consists of a summary and interpretation, by Petitioner's staff, of each
Environmental Protection Agency (hereinafter "EPA") change or notice regarding the hazardous
waste management program as regulated by the Resource Conservation and Recovery Act and as
published in the Federal Register. Along with these summaries, Petitioner includes a photocopy of
the pertinent Federal Register pages to allow subscribers an opportunity to review the actual EPA
language. A bimonthly mailing can include from one to ten separate notices on a variety of issues
within the hazardous waste management area.
The RCRA Update is sold on a nationwide basis to anyone interested in such an updating
service.
The RCRA Update includes summaries of interpretations of all EPA notices, proposals and
final rules regarding changes to the hazardous waste regulations as found in 40 CFR 269 to 280.
While individual topics may be diverse (i.e. technical design standards for a hazardous waste landfill
or financial assurance for closure of a permitted facility or identification of a hazardous waste) all
are involved in the EPA hazardous waste program.
Because the management of hazardous wastes involves many complex but interdependent
disciplines, the EPA RCRA regulations require a multitude of special skills for interpretation and
implementation. To adequately explain changes to this system, Waste Resource Associates, Inc.
employs a staff of individuals with specialized expertise to read the notices, proposals or changes
in the final rules and produce the summary explanations for their subscribers. Often, because of the
complexity of the regulations, several individuals must collaborate to ensure production of an
accurate document. All the summaries and interpretations are devoted to providing an understanding
of the RCRA program.
Section 1105 of the Tax Law states, in part:
Imposition of sales tax.--...there is hereby imposed and there shall be paid a
tax of four percent upon:
(a) The receipts from every retail sale of tangible personal property, except
as otherwise provided in this article.

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September 1, 1993
*

*

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(c) The receipts from every sale, except for resale, of the following services:
(1) The furnishing of information by printed, mimeographed or multigraphed
matter or by duplicating written or printed matter in any other manner, including the
services of collecting, compiling or analyzing information of any kind or nature and
furnishing reports thereof to other persons, but excluding the furnishing of
information which is personal and individual in nature and which is not or may not
be substantially incorporated in reports furnished to other persons, ...
Section 528.6 of the Sales and Use Tax Regulations states, in part:
Section 1115(a)(5) of the Tax Law provides an exemption from sales and use tax for
newspapers and periodicals.
Newspapers and periodicals (Tax Law, §1115([a][5]). (a) Exemption. The
sale of ... periodicals is exempt from sales and compensating use tax.
(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
(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

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Sales Tax
September 1, 1993
second class mailing privileges, that fact will be considered in determining whether
or not the publication is a periodical.
(3) Nothing in this section shall be construed to exempt as a periodical the
following:
(ii) listings and compilations which constitute information services;
Example 6:

A publisher compiles information concerning
corporate securities and publishes the results in a
series of publications issued biweekly.
The
publications are intended to comprise a complete
reference book or manual at the end of the year. The
publications are not periodicals but constitute a
taxable information service.

Example 7:

A company publishes and distributes weekly and daily
reports on corporations, corporate securities, and
bonds. The publications are not periodicals and
constitute a taxable information service.

Section 528.6(c)(3)(ii) of the Sales and Use Tax Regulations provides that:
(3) Nothing in this section shall be construed to exempt as a periodical the
following: ...
(ii) listings and compilations which constitute information
services; ...
In the instant matter Petitioner's newsletter consists of photocopies of pages from the Federal
Register which pertain to EPA changes or notices regarding the hazardous waste management
program as regulated by the Resource Conservation and Recovery Act and comments, by Petitioner's
staff, which are more in the form of a summary of the EPA changes or notices and only occasionally
contain an editorial comment or note.
Accordingly, as Petitioner's newsletter consists mainly of photocopied pages from the Federal
Register and staff written summaries of the information contained in the photocopied material rather
than internally-generated editorial, forecasting, advisory or interpretational narratives (See West
Publishing Co., Dec State Tax Comm, February 11, 1985, TSB-H-85(38)S) the newsletter does not
meet the definition of a periodical as provided under Section 528.6(c)(1) of the Sales and Use Tax
Regulations in that the newsletter does not 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. It isconsidered to be a compilation which constitutes a taxable information service (See

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Sales Tax
September 1, 1993
Section 528.6(c)(3)(ii) of the Sales and Use Tax Regulations and Generic Stock Investment Service,
Inc. Advisory Op, Comm of T & F, September 13, 1988, TSB-A-88(44)S.
Accordingly, Petitioner's newsletter is not a newspaper or periodical exempt from sales and
use tax under Section 1115(a)(5) of the Tax Law. It is an information service which is not personal
or individual in nature and is thus subject to sales and use tax under the provisions of Section
1105(c)(1) of the Tax Law.

DATED: September 1, 1993

/s/
PAUL B. COBURN
Deputy Director
Taxpayer Services Division

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