Appellate Court Holds That Furnishing of Pricing Information Is Not a Taxable Information Service -

The Appellate Division has issued a potentially important decision regarding the sales tax exclusion for information services that are “personal and individual in nature.” Reversing the Tax Appeals Tribunal, the Appellate Division has held that the furnishing of retail grocery store pricing information, although based on data that was publicly available, nonetheless qualified for the “personal and individual” exclusion because the information was both tailored to the customer’s specifications and separately maintained by the provider exclusively for the particular client. Matter of Wegmans Food Markets, Inc. v. Tax Appeals Trib., et al., Case No. 523287 (3d Dep’t, Nov. 22, 2017). The decision calls into question the Department’s policy that whenever the source of the information being furnished is accessible to the general public, even if not obtained from a common database or substantially incorporated into reports furnished to others, the “personal and individual” exclusion does not apply.

Wegmans Food Markets, Inc. (“Wegmans”), a regional supermarket chain, retained RetailData, LLC, to provide “competitive price audits.” RetailData collected competitor pricing information on specified retail products, which it then compiled into reports furnished to Wegmans. The pricing information was obtained from publicly available sources, i.e., the prices of goods on display on the sales floors and shelves of competitors’ stores, which Wegmans used for its own pricing strategies.