Gaines v. Tully

New York Court of Appeals

Gaines v. Tully

406 N.E.2d 1335, 49 N.Y.2d 1008, 429 N.Y.S.2d 398, 1980 N.Y. LEXIS 2359

CourtNew York Court of Appeals

DecidedMay 1, 1980

StatusPublished

Cited by2 cases

This text of 406 N.E.2d 1335 (Gaines v. Tully) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gaines v. Tully, 406 N.E.2d 1335, 49 N.Y.2d 1008, 429 N.Y.S.2d 398, 1980 N.Y. LEXIS 2359 (N.Y. 1980).

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Opinion

[1010]*1010OPINION OF THE COURT

Memorandum.

The judgment of the Appellate Division should be affirmed, with costs, for the reasons stated in the opinion by Mr. Justice J. Clarence Herlihy at the Appellate Division (66 AD2d 106).

The Tax Commission’s finding that the taxpayer firm held the partner’s stock exchange membership as a capital asset was not supported by substantial evidence. Nor was the proof sufficient to sustain a finding that the firm was entitled, directly or indirectly, to benefit from the proceeds of the sale of this asset. Hence, the Tax Commission was not justified in treating the gain from the sale of the asset as income realized by the firm for purposes of the unincorporated business tax (see Tax Law, § 705, subd [a]).

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

Judgment affirmed, with costs, in a memorandum.

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[1010]*1010OPINION OF THE COURT

Memorandum.

The judgment of the Appellate Division should be affirmed, with costs, for the reasons stated in the opinion by Mr. Justice J. Clarence Herlihy at the Appellate Division (66 AD2d 106).

The Tax Commission’s finding that the taxpayer firm held the partner’s stock exchange membership as a capital asset was not supported by substantial evidence. Nor was the proof sufficient to sustain a finding that the firm was entitled, directly or indirectly, to benefit from the proceeds of the sale of this asset. Hence, the Tax Commission was not justified in treating the gain from the sale of the asset as income realized by the firm for purposes of the unincorporated business tax (see Tax Law, § 705, subd [a]).

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

Judgment affirmed, with costs, in a memorandum.

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Bluebook (online)

406 N.E.2d 1335, 49 N.Y.2d 1008, 429 N.Y.S.2d 398, 1980 N.Y. LEXIS 2359, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gaines-v-tully-ny-1980.

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