Feld v. Gallman

41 A.D.2d 882, 342 N.Y.S.2d 697, 1973 N.Y. App. Div. LEXIS 4637

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 26, 1973
• Status: Published

Opinion

Proceeding pursuant to CPLR article 78 (transferred to the Appellate Division of the Supreme Court in the Third Judicial Department by order of the Supreme Court at Special Term, entered in Albany County) to review a determination of the State Tax Commission, which sustained an unincorporated business tax assessment imposed pursuant to section 703 of the Tax Law. The sole issue presented here is whether the Tax Commission’s determination was supported by substantial evidence. The taxpayer sold women's apparel for two noncompetitive corporations. The Tax Commission found that the taxpayer was conducting a business. The record establishes that the taxpayer was not reimbursed for any of his selling expenses; that in regard to conflicts as to work requirements between the two corporations the taxpayer decided which was the more important; that for the majority of the time the taxpayer had sole discretion in setting his appointments and itinerary while on the road; that he had discretion as to wbieh customers to see and for which corporation; that he was paid on a commissions only basis; and that he was not compensated for any incidental service he performed for the corporations other than the selling-revenue. The foregoing facts are substantial evidence to support the finding that the taxpayer was an entrepreneur. (See Matter of Hardy v. Murphy, 29 A D 2d 1038.) Determination confirmed and petition dismissed, without costs. Herlihy, P. J., Greenblott, Cooke, Kane and Main, JJ., concur..