I.

At the threshold, we must determine the standard of review governing the Department's construction of the CMSA. As we have often stated, "an agency's interpretation of the statutes it administers must be upheld absent demonstrated irrationality or unreasonableness," but where "the question is one of pure statutory reading and analysis, dependent only on accurate apprehension of legislative intent, there is little basis to rely on any special competence or expertise of the administrative agency" (Seittelman v Sabol, , 91 NY2d 618, 625 [1998] [internal citations omitted]; see also Kurcsics v Merchants Mut. Ins. Co., , 49 NY2d 451, 459 [1980]). Unquestionably the CMSA contemplates an enforcement role for the Department, but the parties dispute whether the Department's presumed expertise in the operation of cigarette markets lends authority to its construction of Tax Law section 484. We conclude that this is a matter of statutory interpretation, not agency deference.

This action differs significantly from most of the administrative law and tax cases the parties cite. This action is not a challenge to an agency rule or adjudication; nor do plaintiffs have any preserved argument that the TSB Memorandum constitutes agency action improperly taken without rulemaking (see Tax Law § 171[23]; 20 NYCRR 2375.6[a][2]). Rather, the Department in all procedural respects properly issued the TSB Memorandum, a document "advisory in nature * * * merely explanatory" and without "legal force" (20 NYCRR 2375.6[c]). To this extent, plaintiffs derive little benefit from authorities they cite, for instance, for the proposition that agencies deserve less deference when they issue regulations inconsistent with positions they have previously formally taken (cf. Matter of Richardson v Commr. of NYC Dept. of Soc. Servs., , 88 NY2d 35, 39 [1996]).

Conversely, however, the Tax Department cannot squeeze as much as it would like out of cases in which, while reviewing challenges to audits and assessments, we have deferred to its construction of tax statutes (cf. Matter of Siemens Corp. v Tax Appeals Tribunal, , 89 NY2d 1020 [1997]; Matter of Am. Tel. & Tel. Co. v State Tax Comm., , 61 NY2d 393 [1984]). In such cases the Department necessarily must apply expertise to the detailed labor of fitting tax filings and other accounting artifacts into the language of the Tax Law. Here, by contrast, we are not reviewing the "specific application of a broad statutory term in a proceeding in which the agency administering the statute must determine it initially" (Matter of Am. Tel. & Tel., 61 NY2d at 400). Moreover, the Department concedes that the promotions pose no threat to its collection of revenue.[4] We are reluctant to assume that the Legislature intended to afford the Department the same deference when it expounds this pricing statute that it may enjoy when it more concretely applies statutory terms to specific transactions, especially in the revenue context.

Further, because the TSB Memorandum and subsequent communications by individual Tax Department personnel serve an advisory purpose, they lack the precision of determinations generated through more formal Department action. According to plaintiffs, Department personnel threatened retailers with $20,000 fines for CMSA violations. But the CMSA provides such fines only for wholesalers and agents (see Tax Law § 484[a][5][A]). The TSB Memorandum is more accurate; the only penalty it mentions for retail dealers is that which would ensue upon a successful criminal prosecution. But if a CMSA violation were prosecuted, the applicable rules of construction would be those applying to penal statutes.

In this context, it is noteworthy that the TSB Memorandum omits reference to the one civil remedy the Tax Department is expressly entitled to seek against a retailer who violates the CMSA: an injunction (see Tax Law § [1]). Nothing about the CMSA suggests a legislative intention to make the pursuit of this remedy easier for the Department than for aggrieved competitors, who also may seek it. The CMSA thus puts the Tax Department, in some respects, on a similar footing with private litigants. This circumstance further differentiates this case from revenue-related tax cases where we have taken a more deferential approach.

Finally, as the Department recognizes, our affirmance here may function as an endorsement of the Department's interpretation of the CMSA, but it could never resolve whether a given sale made pursuant to a "master-type" or "buy-down" promotion actually violates that statute. This is because the CMSA only establishes a presumption that sales below cost are made with the proscribed intent (see Tax Law § 484[a][6]). The TSB Memorandum merely states this presumption and asserts that the disputed promotions result in sales below cost, necessarily leaving the application to concrete cases for the appropriate enforcing authorities and the courts. We are therefore loath to resolve the instant case on an unnecessarily expansive reading of the Tax Department's authority. As the next section shows, the Tax Department prevails in any event, on our own reading of the plain meaning of the statutory language.

II.

Neither the prohibition on sales below cost nor the definition of the "basic cost of cigarettes" says anything directly about manufacturer promotions, so the parties dispute how such promotions fit into the statutory scheme. The Tax Department reasons that such promotions result in sales to consumers "at less than cost of such * * * retail dealer" and notes that such sales are "prima facie evidence of intent to injure competitors and to destroy or substantially lessen competition" (see Tax Law §§ 484[a][1], [a][6]). The harm to competition would arise when one retailer, participating in a promotion unavailable to its rival, sold cigarettes at a price its competitor could not afford to match.

The Department maintains that buy-downs and master-type promotions are inherently likely to harm competition in this way because they require a deal between the manufacturer and the retailer, a deal which may be unavailable to some retailers or may be made available with conditions that vary from one retailer to the next. In contrast, consumers receiving paper coupons through the mail or the press may redeem them with any retailer, and the Department considers this possibility sufficient to rebut the presumption of anticompetitive intent set forth in section 484(a)(6). Finally, the Department reasons that affixed sticker and affixed coupon promotions may also rebut the presumption, if they are made available to all retailers.

Thus, starting from the premise that retail pricing below cost harms those retail competitors who cannot participate in a given promotion, the Tax Department has inferred what the parties call a "universality" requirement pervading the structure of section 484, a requirement with which the disputed promotions are incompatible. The Department finds additional support in the prohibition on attempts to calculate the cost of cigarettes by including "payment made to [a] * * * retail dealer * * * by the manufacturer" for "promotion purposes" (see Tax Law § [2]). Finally, it has suggested that sales made pursuant to the disputed promotions violate the prohibition on rebates and concessions (see Tax Law § 484[a][4][B]; 20 NYCRR 84.1). Although it persuaded Supreme Court that the promotions are "concessions," the Department has been far from unequivocal in its reliance, before us, on this subdivision, as it believes the determination of whether a retailer has improperly "procured" a rebate or concession "on behalf of a purchaser" (see 20 NYCRR 84.1[a][2]) depends on the facts of a specific sale.

Plaintiffs counter that the CMSA says nothing about "universality," in contrast to other pricing statutes that make such a requirement explicit (cf. Alcoholic Beverage Control Law § 101-b). They argue that if the inference of a universality requirement rests upon a purported legislative intention to deter unfair price cuts among retailers, the legislative history -- largely preoccupied with competition among wholesalers affected by differences in the regulatory schemes of neighboring states -- does little to evince such an intention. This circumstance, plaintiffs maintain, is unsurprising because the Robinson-Patman Act already prohibits anticompetitive price differences, rendering additional State regulation in this area superfluous at best (see 15 USC § 13[a] et seq.).[5] To the extent that the CMSA protects retailers, they say, the promotions are compatible with this protection because in the end each participating retailer receives the full value of every pack of cigarettes sold -- most of it from the consumer, and the rest from the manufacturer. Viewing the statute in this way, plaintiffs have no difficulty explaining that the promotions are not unlawful "rebates or concessions" because they do not give the retailer "something of value" (see 20 NYCRR 84.1[b][1]), but merely leave it with the same sum per package that it would have had in any event.

The dispute thus comes down to whether the promotions may be presumed to create a kind of price differentiation among retailers that the Legislature meant to prohibit. We agree with the Department, and the courts below, that they may.

Although wholesale distributors were the industry segment most exposed to potentially unfair interstate competition, the legislative history shows that advocates saw the need to enable "all elements of the cigarette distribution industry to make reasonable profits from their labors and to ensure that no segment of the industry is injured in order to benefit other dealers" (Letter from State Dept of Taxation & Finance, July 12, 1985, Bill Jacket, L 1985, c 897, at 19). In identifying this need, the Tax Department noted the argument that when "one retailer lowers its price to reflect lower cost of cigarettes, its retail competitors * * * pressure their suppliers for a reduced price in order to enable them to compete" (State Dept of Taxation & Finance, Cigarette Predatory Pricing Task Force, April 1985, at 15). The statute was therefore designed to regulate price competition at the retail as well as wholesale level, and its 1987 amendments, by fine-tuning several definitions, specifically "reduce[d] the advantage which chain stores" -- chains of 15 or more retail outlets -- had "over small independent retailers" (Governor's Mem approving L 1987, c 860, 1987 McKinney's Session Laws of NY, at 2743). In sum, the legislative history reveals a greater unease over intrastate retail price differences than plaintiffs acknowledge.

The simplest reading of the statute is that it is designed to limit these differences, at the retail level as well as at other levels. While the CMSA does not explicitly require manufacturers to make promotions universally available to retailers, it also leaves little room for prices reduced pursuant to promotions like those at issue here. Although the CMSA does not regulate manufacturers, it does provide that payment made by a manufacturer to a retailer for "promotion purposes, or otherwise, shall not be considered in determining the cost of cigarettes" (Tax Law § 485[a][2]). This provision shows, at the very least, that the Legislature was aware of manufacturer promotions and did not intend to let them distort the retail price structure. This is consistent with the main prohibition at issue here, which forbids a retailer, with unlawful intent, to sell cigarettes at less than its cost (see Tax Law § 484[a][1]).[6] Nothing suggests that such a sale is permissible if the retailer ultimately recovers the difference between the sale price and its cost. Such a reimbursement would be cold comfort to a competing retailer excluded from the promotion and, at bottom, we find more persuasive the Tax Department's view that the CMSA aims, in part, to protect that competing retailer.

Having identified this aim, we agree with the Department that some promotions -- notably those with paper coupons distributed to the public at large -- are presumptively lawful. This is so not because the manufacturer repays the retailer and thus brings the price back within permissible bounds, as plaintiffs would have it, but because the circumstances surrounding such promotions rebut the presumption that participants intend to harm competition or their competitors or to evade taxes. Plaintiffs are free to attempt to rebut this presumption factually in any enforcement action that follows if they continue to use buy-down and master-type promotions or sticker promotions not universally available.

Accordingly, the order of the Appellate Division should be affirmed, with costs.