Ruling 94-19, Sales and Use Taxes / Sales of Magazines by Subscription

This Ruling has been obsoleted in part by SN 2003(5) 

FACTS:

A publishing company ("the Company") produces a number of scientific and technological publications for sale to the public. The publications are issued in printed form at stated intervals, depending on the publication, from four times to twelve times per year, and are available for circulation to the public; they do not, either singly or when successive issues are put together, constitute a book; they have continuity as to title and general nature of content from issue to issue, and each publication contains a variety of different articles by different authors devoted to a particular scientific or technological field of endeavor. The general subjects with which the publications deal include criminology, astronomy and physics, construction materials and their processing, chemistry, electronics, electrical engineering and telecommunication, packaging and food technology and medical practice.

ISSUE:

Whether the sales of the Company's publications by subscription are exempt from sales and use taxes under Conn. Gen. Stat. §12-412(6) as the sales of magazines by subscription.

DISCUSSION:

Conn. Gen. Stat. §12-412(6) exempts the "[sales of magazines by subscription." The Department has no statutory or regulatory definition of "magazine." One of the inherent problems in developing and applying such a definition is to avoid criteria that are based on the content of the publication. For example, excluding trade publications from the definition, while including only magazines which purport to "entertain the general public," requires the Department to examine not merely the format, continuity and appearance of a publication, but its subject matter. This examination is almost certain to result not in an objective application of the criteria, but in one which reflects the prejudices of the person making it. What entertains one person may offend another. What is fascinating to one person may seem arcane and technical to another. Which individual is the true representative of the "general public"?

The U.S. Supreme Court, in Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221, 95 L. Ed. 2d 209 (1987), found that the Arkansas taxing scheme was unconstitutional because it differentiated among magazines based on their content. The Arkansas tax allowed an exemption from sales and use taxes for "religious, professional, trade and sports journals ..." and taxed so-called "general interest" magazines. 95 L. Ed. 2d at 209. In order to determine whether a magazine was exempt, Arkansas was forced to examine its content. The Court concluded that "[such official scrutiny of the content of publications as the basis for imposing a tax is entirely incompatible with the First Amendment's guarantee of freedom of the press." Id., 220.

The question of what the definition of "magazine" should be for purposes of Conn. Gen. Stat. §12-412(6) remains. In Gallacher v. Commissioner of Revenue Services, 221 Conn. 166, 602 A.2d 996 (1992), the Connecticut Supreme Court, in examining the definition of "newspaper" in the absence of a statutory or regulatory definition, noted that in the past the court had "determined that the word should be given its plain, ordinary meaning and should be construed according to its commonly approved usage." Id., 172.

The American Heritage Dictionary (2d College Edition) defines a "magazine" as a "periodical containing a collection of articles, stories, pictures, or other features." However, this definition leaves open the question of what is a "periodical." Other jurisdictions have attempted to define "periodical" in a content-neutral way. Notably, the sales and use tax regulations of New York State contain this definition, at N.Y. Admin. Code tit. 20, § 528.6(c):

The New York regulatory definition appears to be compatible with the dictionary definition of "magazine," cited above, but it also establishes several definite, easily ascertainable criteria for determining whether a publication is a "periodical," which, while inviting examination of the form and format of a publication, do not require the taxing authority to compare the content of one such publication with that of another. The list of subjects in subparagraph (v) of the regulation is so broad as to encompass virtually all types of periodical publications. As such, the New York definition appears to provide a constitutionally workable set of criteria for the definition of "magazine" for purposes of Conn. Gen. Stat. §12-412(6).

RULING:

The sales of the Company's publications by subscription are exempt from sales and use taxes under Conn. Gen. Stat. §12-412(6) as the sales of magazines by subscription, because the Company's publications (1) are published in printed or written form at stated intervals, at least as frequently as four times a year; (2) do not, either singly or when successive issues are put together, constitute a book; (3) are available for circulation to the public; (4) have continuity as to title and general nature of content from issue to issue; and (5) contain, in each issue, 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.

LEGAL DIVISION

October 12, 1994