We respectfully dissent. The determination by respondent State Tax Appeals Tribunal challenged by petitioner is that a group of some 24 individual retail cigarette-selling merchants could register as a chain store by becoming members of a cooperative corporation, and thus qualify for the favorable treatment in purchasing cigarettes accorded chain stores under the Cigarette Marketing Standards Act (Tax Law art 20-A) (hereinafter CMSA). It appears to be uncontradicted that CMSA was enacted to stabilize the cigarette industry in New York by regulating and controlling the sales prices of cigarettes at the wholesale and retail levels. Price regulation is achieved under CMSA by fixing minimum markup percentages to be charged at the various stages of the distribution chain. Specifically, CMSA requires the imposition of a minimum 3%% markup over cost on sales to regular retailers, %% on sales to wholesalers and 1V2% on sales to chain stores (see, Tax Law § 483 [b] [1] [B]). A chain store is defined under the statute as "any person * * * who owns or maintains fifteen or more retail outlets * * * having one hundred percent common ownership, through which cigarettes are sold at retail” (Tax Law § 483 [a] [3]). The definition of chain store also includes "cooperative members, franchisees and large volume outlets” (§ 483 [a] [3]).
Petitioner is a membership corporation whose members are wholesale sellers of cigarettes representing 80% of all Statewide wholesale cigarette distribution. The petition and supporting affidavit aver in substance that the respective markup percentages set forth in CMSA were arrived at after extensive fact finding and negotiations resulting in figures reflecting the cost of doing business of those within the chain of cigarette distribution. According to petitioner, respondent Target Cooperative Buying Association (hereinafter Target) does not constitute, and the individual respondent retail cigarette sellers did not form, a bona fide cooperative within the contemplation of CMSA (Tax Law § 483 [a] [3], [5]). Instead, Target was merely a device created solely for the purpose of changing respondent sellers’ status from retail dealer to that of a chain *138store, thereby taking advantage of the lower statutory minimum markup percentage for the latter category. It is further alleged that it was on this basis, i.e., that Target was not a bona fide, operationally functional cooperative but was formed solely to achieve chain store status for its members, that the Department of Taxation and Finance refused registration as a chain store to Target and its members. Petitioner’s averments further state in substance that the Tax Appeals Tribunal’s contrary ruling is affected by an error of law and is contrary to the express legislative intent in thus permitting cigarette retailers to achieve the advantages of chain stores by the simple expedient of joining a cooperative whose sole purpose and function is to provide that status.
The ground upon which Supreme Court found that petitioner lacks standing, and that relied upon by respondents on this appeal, was that Tax Law § 2016 evinced a legislative intent to limit access to judicial review of Tax Appeals Tribunal decisions to the petitioner at the administrative proceeding (citing, inter alia, Matter of Dairylea Coop. v Walkley, 38 NY2d 6, 11). We agree entirely with the reasoning of the majority demonstrating that this ground for denying standing is untenable. We cannot agree, however, with the majority’s conclusion that petitioner has not adequately pleaded that its members are harmed by the Tax Appeals Tribunal’s decision and that petitioner lacks standing for that reason. In essence, petitioner has alleged that the purely formalistic approach of the Tax Appeals Tribunal’s decision in determining whether cigarette retailers are members of a cooperative for purposes of CMSA will enable such retailers throughout the State to circumvent the carefully balanced pricing and profit structure of the statute, thus avoiding payment of the proper markup for sales from wholesalers to retailers, without diminishing the retailers’ independence or otherwise changing to any meaningful extent the manner in which they conduct business. In other words, petitioner claims that the precedent created by the Tax Appeals Tribunal’s decision, which is binding on the Department of Taxation and Finance, readily permits all cigarette retailers within the State to pay a lesser markup for their cigarettes than CMSA envisaged, and in turn, this will adversely impact on the stability of the cigarette industry in the State.
In our view, the potential loss of profits for petitioner’s members, as cigarette wholesalers, and the threatened impact on the cigarette industry from the precedent of the Tax *139Appeals Tribunal’s decision are sufficiently harmful effects to confer standing. The rationale for finding the sufficiency of the claimed harm here is the same as in Matter of Bradford Cent. School Dist. v Ambach (56 NY2d 158), a case in which the Commissioner of Education awarded permanent certification to a teacher without the recommendation of the employee school district, despite a requirement for such a recommendation under the applicable regulations. In Bradford, this court found no standing on the part of the school district because it was not aggrieved by the grant of certification to the teacher. The court reasoned that the school district could not "be held liable for hiring an unqualified teacher when the teacher in question has been certified by the State. Moreover, it is most significant that the matter of certification relates to respondents] * * * right to be licensed generally to teach in the public school system of the State and does not directly concern the district in its employer-employee relationship with her” (Matter of Bradford Cent. School Dist. v Ambach, 82 AD2d 962, affd 56 NY2d 158, supra). The Court of Appeals in Bradford nonetheless held that the petitioner school board was injured "by virtue of the commissioner’s interpretation of [the] regulation” (Matter of Bradford Cent. School Dist. v Ambach, 56 NY2d 158, 164, supra [emphasis supplied]). The court further held that "[w]hen the commissioner interprets his regulations, as he did in this case, in a manner which arguably interferes with the discretion granted by those regulations to local school boards, there is sufficient injury to justify conferring standing” (supra, at 164 [emphasis supplied]). So, too, this court in Rex Paving Corp. v White (139 AD2d 176) found that a contractor, which was ineligible for the benefits of certain State affirmative action programs favoring minority business enterprises, had standing to challenge the validity of such programs on the basis of "the potential effect on plaintiff’s ability to participate in government contracts” (supra, at 182 [emphasis supplied]). Clearly, the decision petitioner seeks to challenge here, in its interpretation and application of the pertinent provisions of CMSA, has a serious potential impact upon petitioner’s members, who comprise businesses handling 80% of the entire wholesale distribution of cigarettes in the State.
An additional reason to find standing here is that unless petitioner’s challenge is entertained, the ruling of the Tax Appeals Tribunal will in all likelihood escape judicial review (see, Rex Paving Corp. v White, supra, at 181-182; Matter of *140New York State Assn. of Community Action Agency Bd. Members v Shaffer, 119 AD2d 871, 875). For the foregoing reasons, we would reverse. Since this petition is not a challenge pursuant to Tax Law § 2016 and respondents have never answered the petition or otherwise addressed the merits before Supreme Court or on this appeal, we would remit to Supreme Court for further proceedings in the exercise of its statutory original jurisdiction to determine this petition (see, CPLR 506 [b] [2]; 7804).
Mahoney, P. J., and Harvey, J., concur with Casey, J.; Weiss and Levine, JJ., dissent and vote to reverse in an opinion by Levine, J.
Judgment affirmed, without costs.