MEMORANDUM.
The judgment of the Appellate Division should be affirmed for the reasons stated in the opinion of Justice T. Paul Kane ( 146 A.D.2d 371), with costs. On this appeal the State contends, for the first time, that even if the taxpayer prevails in its claim that the tax levied on it for tax years 1976 through 1979 is unconstitutional, the court's decision, based upon a 1978 amendment to the Commission's rules and a 1981 statutory amendment (L 1981, ch 103, § 1, amending Tax Law § 210 [a] [2] [B]), should not be applied retroactively because the methodology for assessing the tax had been approved in 1976 in Matter of Conde Nast Publs. v State Tax Commn. ( 51 A.D.2d 17, mot to dismiss appeal granted 39 N.Y.2d 942). Acceptance of that position would leave the petitioner virtually remediless after payment of $1,731,617.30 in taxes, interest and penalties. After the rule was changed by statute in 1981, petitioner had little reason to pursue this lengthy and expensive litigation except to recover the sums improperly charged against it. Inasmuch as respondent has not established that requiring repayment would impose any undue burden, we reject the respondent's claim of nonretroactivity (cf., Foss v City of Rochester, 65 N.Y.2d 247, 260).
Chief Judge WACHTLER and Judges SIMONS, KAYE, ALEXANDER, TITONE, HANCOCK, JR., and BELLACOSA concur.
Judgment affirmed, with costs, in a memorandum.