
    In the Matter of Fagliarone, Grimaldi & Associates, Petitioner, v Tax Appeals Tribunal et al., Respondents.
   Yesawich, Jr., J.

Proceeding pursuant to CPLR article 78 (initiated in this court pursuant to Tax Law § 2016) to review a determination of respondent Tax Appeals Tribunal which sustained a sales and use tax assessment imposed under Tax Law articles 28 and 29.

Petitioner, a general partnership, challenges respondent Tax Appeals Tribunal’s determination that the partnership is not entitled to a $3,787.63 refund of sales taxes paid for certain utility and maintenance costs (see, Tax Law arts 28, 29). The taxes arise out of the operation of an office building located at 650 James Street in the City of Syracuse, Onondaga County. Previously, petitioner had arranged with the Syracuse Industrial Development Agency (hereinafter SIDA) for issuance of an industrial development bond (hereinafter IDE) to cover the costs of renovating the property into modern commercial office space. The parties executed a sale-leaseback agreement whereby petitioner transferred title of the property to SIDA, which in turn simultaneously leased the premises to petitioner.

The point in question on this appeal is whether a private developer of an IDE-financed project is exempt from paying sales tax on expenses incurred to operate the property. Sales taxes were paid by petitioner on maintenance and utility services furnished by it to its subtenants, as well as on cleaning and lavatory supplies and ice melting chemicals.

General Municipal Law § 874 (1) provides that an industrial development agency "shall be required to pay no taxes or assessments upon any of the property acquired by it or under its jurisdiction or control or supervision or upon its activities”. While the statute explicitly confers this exemption only on the industrial development agency, private developers who act as the agency’s agent for project purposes may also enjoy this tax benefit (see, Wegmans Food Mkts. v Department of Taxation & Fin., 126 Misc 2d 144, 150, affd on opn below 115 AD2d 962, lv denied 67 NY2d 606). Here, however, the evidence respecting whether petitioner was SIDA’s agent for maintaining the project is inconclusive. The lease agreement contains ambiguous language regarding petitioner’s status during various stages of the project. On the one hand, SIDA "appoints [petitioner] as its Agent to, and [petitioner] agrees that [petitioner] shall bear the sole responsibility for, completion of the renovation and development of the Facility [the building, personalty and related property, constructed or installed on the leased land]”. On the other hand, two paragraphs later the agreement states that, "It is understood that [petitioner] will act as an independent contractor, to, and not as an agent of, [SIDA] in connection with such completion of the renovation, construction, development and expansion of the Facility.” Further blurring the situation is a "statement of tax exempt status” dated October 3, 1986, issued by SIDA, wherein it specifically declared that petitioner was its agent for the purpose of both developing and operating the project.

A guiding principle of tax law is that statutes creating a tax exemption are construed against the taxpayer (Matter of Grace v New York State Tax Commn., 37 NY2d 193, 196). Exemptions must be clearly indicated as they will not be created by implication (see, Matter of Great Lakes Dredge & Dock Co. v Department of Taxation & Fin., 39 NY2d 75, 79, cert denied 429 US 832). Irrespective of petitioner’s status, the fact is that General Municipal Law § 874 (1) specifically exempts only the industrial development agency itself from paying taxes upon its "property” or its "activities”. Significantly, in the matter at hand the lease limits SIDA’s activities to "acquiring], constructing], equipping] and developing]” the project. It is petitioner that is obligated, at its own expense, to repair and maintain the project, and pay all utility and other expenses experienced in operating, maintaining, using and occupying the project. Given that operating and maintaining the property were not SIDA activities nor, in our view, otherwise essential to the renovation project (see, Wegmans Food Mkts. v Department of Taxation & Fin., supra, at 150), the statutory exemption does not apply.

Moreover, petitioner’s argument notwithstanding, requiring it to pay sales tax on its operating expenses would not alter the amount of financing necessary to develop the project. And, unlike the circumstances presented in Wegmans Food Mkts. v Department of Taxation & Fin. (supra, at 145, 152) where equipment purchased and installed in the projects became the property of the industrial development agency, here the purchases—the bulk of them being for utility services—by their very nature are such that they are incapable of becoming SIDA’s tangible property.

Determination confirmed, and petition dismissed, without costs. Kane, J. P., Casey, Mikoll, Yesawich, Jr., and Mercure, JJ., concur.  