Emery Air Freight Corp. v. Tishelman

431 N.E.2d 636, 55 N.Y.2d 740, 447 N.Y.S.2d 151, 1981 N.Y. LEXIS 3276

Opinion

OPINION OF THE COURT

Memorandum.

The judgment of the Appellate Division should be affirmed, with costs.

Petitioner, Emery Air Freight Corp., challenges the New York City Commercial Rent Tax deficiency assessed against it by respondent City of New York Finance Administration for the period June 1, 1969 to May 31, 1972. Primarily, petitioner challenges as arbitrary, unreasonable and otherwise unlawful the determination that it was not entitled to a rent deduction for “premises used for air transportation purposes” (Administrative Code of City of New York, § L46-4.0).

The term “premises used for air transportation purposes” is defined as “[t]he portion of any premises, located within an airport or within an air transportation terminal shared by more than one air line, of any person actually operating an air line as a common carrier, used by such person for normal or necessary air transportation purposes” (Administrative Code, §L46-1.0, subd 9). There is no dispute that petitioner did not own or actually operate aircraft during the period for which the deficiency was assessed. Indeed, under Civil Aeronautics Board regulations, petitioner was not permitted to do so. Petitioner did offer an air shipment service to the public, delivering cargo to and recovering it from the airlines. Based upon the evidence adduced at the hearing, respondent rationally could conclude that petitioner was not “actually operating an air line as a common carrier” during the audit period. And, in light of the definition of premises entitled to a rent deduction, respondent’s determination cannot be termed unreasonable.

We have examined petitioner’s remaining contentions and find them to be without merit.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Judgment affirmed, with costs, in a memorandum.