
    In the Matter of Albany Calcium Light Company, Inc., Respondent, v State Tax Commission, Appellant.
    Argued June 1, 1978;
    decided July 6, 1978
    
      APPEARANCES OF COUNSEL
    
      Louis J. Lefkowitz, Attorney-General (Robert W. Bush and Ruth Kessler Toch of counsel), for appellant.
    
      Jeremiah F. Manning for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed insofar as appealed from, with costs.

On this appeal by the State Tax Commission the only question before us is whether the cylinders, which the petitioner uses to deliver gas to its customers, were purchased for resale so as to be exempt from the sales tax at the time of purchase (Tax Law, § 1105, subd [a]; § 1101, subd [b], par [4]).

Initially we note that the statute defines a sale (Tax Law, § 1101, subd [b], par [5]) and does not separately define a resale. It appears then that the Legislature does not consider a sale and resale as discrete concepts and thus a purchaser who acquires an item for the purpose of sale or rental (Tax Law, § 1101, subd [b], par [5]) purchases it for resale within the meaning of the statute. We also recognize that a company which furnishes gas to its customers in cylinders must, if it is to remain solvent, include and recover the cost of the cylinder in the rate charged for the gas. It does not follow, however, that when the gas is delivered in the cylinder the customer is renting the cylinder absent a specified charge for that rental. It should not fall within judicial "decisional analysis” to determine what is or is not a rental (cf. Matter of Crossman Cadillac v Board of Assessors, 44 NY2d 964, decided herewith).

Demurrage charges for retaining the cylinder beyond the initial 30-day period are, on the other hand, rental fees which are not included in the customers’ cost of purchasing the gas. However, the fact that the petitioner charges such a fee does not mean that the cylinders were purchased for the purpose of rental. Obviously the petitioner did not acquire the cylinders with the expectation of collecting these unusual charges which are purely incidental to its primary business of selling gas to its customers.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur.

Order reversed, with costs, and the determination of the State Tax Commission that petitioner’s original acquisition of metallic cylinders was not tax exempt reinstated in a memorandum.  