Dunkin' Donuts Mid-Atlantic Distribution Center, Inc. v. Tax Appeals Tribunal

—Mercure, J. P. Petitioner distributes various products to donut shops located within New York. This proceeding centers upon one of those products, wax tissue paper, used (as recited in the parties’ stipulated statement of facts) by donut shop personnel (1) to pick up individual donuts or muffins and place them in bags 904 or boxes, such that the donut or muffin is partially covered and separated from other donuts or muffins, if any, in the same bag or box, and (2) to line the top and/or bottom of boxes in which donuts are placed. Petitioner asserts that the wax tissue paper should be exempt from sales and use tax because it is used in the packaging of donuts and muffins for sale and is transferred, as part of each sale, to the customer (see, Tax Law § 1101 [b] [4] [i] [A]; Matter of Burger King v State Tax Commn., 51 NY2d 614), and that the Tax Appeals Tribunal’s contrary conclusion is erroneous. We disagree and accordingly confirm the challenged determination and dismiss the petition. In our view, petitioner failed to sustain its burden of showing that its sales of the wax tissue paper are subject to the "for resale as such” exclusion of Tax Law § 1101 (b) (4) (i) (A) (see, Celestial Food v New York State Tax Commn., 63 NY2d 1020; Matter of Grace v New York State Tax Commn., 37 NY2d 193; cf., Matter of Burger King v State Tax Commn., supra). Applying the decision of the Court of Appeals in Matter of Burger King v State Tax Commn. (supra), particularly as refined in its subsequent decision in Celestial Food v New York State Tax Commn. (supra), we agree with respondents that the exclusion will not apply in cases, as this, where the purported wrapper is not "necessary to contain the product for delivery * * * [and thus] a critical element of the product sold” (supra, at 1022). Notably, the hearing evidence established a practice at Dunkin’ Donuts shops to use a single piece of wax tissue paper to pick up all the donuts or muffins for a particular customer. Unlike the situation in Burger King, where the wax paper wrapper served as the product’s "container”, at Dunkin’ Donut shops the obvious function of the paper tissue is to provide a hygienic means of handling the food products. Crew III, Yesawich Jr. and Peters, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.