Opinion
Argued February 7, 1986
Decided March 20, 1986
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department, Joseph P. Torraca, J.
David F. Kunz, John E. Holt-Harris, Jr., James B. Ayers and Peter A. Lynch for appellant.
Robert Abrams, Attorney-General (Nancy A. Spiegel, Robert Hermann and Peter H. Schiff of counsel), for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division. We add that the legislative history establishes that the tax was intended to "apply to all competing petroleum businesses, and, with the exception of residential fuel and petrochemical feedstocks, to virtually all petroleum sold in the State" (Memorandum of Assembly Rules Committee, 1983 N.Y. Legis Ann, at 173; see, Governor's Program Bill Memorandum, at 4) and, therefore, that "aviation fuel" as used in Tax Law § 300 (b) covers the fuel sold by plaintiff to the United States Government notwithstanding that its chemical composition differs from that of commercial aviation fuel.
We have not considered the constitutional theories newly advanced before us and which plaintiff concedes were not argued to the courts below. Although within the constitutional concepts presented in the complaint, they have not been preserved for our review in view of plaintiff's failure to argue them below (Matter of Barbara C., 64 N.Y.2d 866; Matter of Eagle v Paterson, 57 N.Y.2d 831; Barber v Dembroski, 54 N.Y.2d 648; cf. Cooper v Morin, 49 N.Y.2d 69, 78).
Chief Judge WACHTLER and Judges MEYER, SIMONS, KAYE, ALEXANDER, TITONE and HANCOCK, JR., concur.
Order affirmed, with costs, in a memorandum.