Matter of Minkin v. New York State Tax Comm'n

New York Court of Appeals

Matter of Minkin v. New York State Tax Comm'n

385 N.E.2d 1041, 45 N.Y.2d 991, 413 N.Y.S.2d 113, 1978 N.Y. LEXIS 2403

New York Court of Appeals·Decided November 28, 1978·Published·Cited by 6 cases

Opinion

OPINION OF THE COURT

Memorandum.

Judgment of the Appellate Division affirmed, with costs. It is true that under the statute and regulations maintenance of an office or space solely for the display of merchandise or the maintenance of records shall not be deemed an office for the purpose of imposing the unincorporated business tax (Tax Law, § 703, subd [f]; 20 NYCRR 203.14). Nevertheless a key factor determining the power to impose the tax is the "principal’s” exercise of direction and control; that factor in the nature of things is generally a question of fact resolvable by the Tax Commission beyond review by the courts (20 NYCRR 203.14 [d] [1]; Matter of Liberman v Gallman, 41 NY2d 774, 778-779). The purported inconsistencies in the handling of appellant’s Social Security deductions, unemployment insurance status, voluntary retirement plan, and personal income taxes, while cogent factors to be considered by the Tax Commission, are not conclusive as a matter of law sufficient to undermine the commission’s determination.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur in memorandum.

Judgment affirmed.

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OPINION OF THE COURT

Memorandum.

Judgment of the Appellate Division affirmed, with costs. It is true that under the statute and regulations maintenance of an office or space solely for the display of merchandise or the maintenance of records shall not be deemed an office for the purpose of imposing the unincorporated business tax (Tax Law, § 703, subd [f]; 20 NYCRR 203.14). Nevertheless a key factor determining the power to impose the tax is the "principal’s” exercise of direction and control; that factor in the nature of things is generally a question of fact resolvable by the Tax Commission beyond review by the courts (20 NYCRR 203.14 [d] [1]; Matter of Liberman v Gallman, 41 NY2d 774, 778-779). The purported inconsistencies in the handling of appellant’s Social Security deductions, unemployment insurance status, voluntary retirement plan, and personal income taxes, while cogent factors to be considered by the Tax Commission, are not conclusive as a matter of law sufficient to undermine the commission’s determination.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur in memorandum.

Judgment affirmed.

Matter of Minkin v. New York State Tax Comm'n, 385 N.E.2d 1041, 45 N.Y.2d 991, 413 N.Y.S.2d 113, 1978 N.Y. LEXIS 2403 (N.Y. 1978).

Pincite

385 N.E.2d 1041 (Matter of Minkin v. New York State Tax Comm'n) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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