Minkin v. State Tax Commission

Appellate Division of the Supreme Court of New York

Minkin v. State Tax Commission

60 A.D.2d 420, 401 N.Y.S.2d 581, 1977 N.Y. App. Div. LEXIS 14393

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 29, 1977

StatusPublished

Cited by11 cases

This text of 60 A.D.2d 420 (Minkin v. State Tax Commission) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Minkin v. State Tax Commission, 60 A.D.2d 420, 401 N.Y.S.2d 581, 1977 N.Y. App. Div. LEXIS 14393 (N.Y. Ct. App. 1977).

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OPINION OF THE COURT

Sweeney, J. P.

Petitioner was a wholesale dress salesman for several noncompeting companies during the years 1968 and 1969. The respondent State Tax Commission concluded that he was subject to an unincorporated business tax for those years. This article 78 proceeding was commenced seeking an annulment of that decision. The issue presented on this proceeding is whether that determination is erroneous as a matter of law, arbitrary or capricious.

Petitioner worked solely on commissions for each of the firms in question. His chief source of income was derived from Domani Knits. Domani withheld Federal and State income taxes and Social Security, and covered petitioner with workmen’s compensation, unemployment, disability and hospitalization insurance. Only one of the other companies deducted any taxes. Domani also exercised some control over petitioner’s work activities. The record further demonstrates that petitioner maintained an office in his home where he stored his samples. The room contained a telephone and typewriter [422]*422which were used for business purposes. All of the companies charged petitioner for samples and none of them reimbursed him for his expenses. On his income tax returns petitioner deducted expenses for office rent, telephone, postage, printing and samples. The record is devoid of any proof that the companies exercised supervision and control of the manner of the sales routine used by petitioner.

Initially, we note that the burden of overcoming this tax assessment rests with petitioner. The Court of Appeals in the recent case of Matter of Liberman v Gallman (41 NY2d 774) considered the issues raised by such a controversy and enumerated certain controlling principles applicable to their resolution. The court noted that our review is limited and that we should not substitute our judgment for that of the Tax Commission where reasonable minds may differ as to the probative force of the evidence (pp 777, 778). It was also stated therein that if there are any facts or reasonable inferences from the facts to sustain the determination of the Tax Commission, the court must confirm (p 777). Applying these principles to the instant case, we are unable to conclude that respondent’s determination is erroneous as a matter of law, arbitrary or capricious and, consequently, we must confirm (see Matter of Rawson v Tully, 60 AD2d 717).

The determination should be confirmed, and petition dismissed, without costs.

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OPINION OF THE COURT

Sweeney, J. P.

Petitioner was a wholesale dress salesman for several noncompeting companies during the years 1968 and 1969. The respondent State Tax Commission concluded that he was subject to an unincorporated business tax for those years. This article 78 proceeding was commenced seeking an annulment of that decision. The issue presented on this proceeding is whether that determination is erroneous as a matter of law, arbitrary or capricious.

Petitioner worked solely on commissions for each of the firms in question. His chief source of income was derived from Domani Knits. Domani withheld Federal and State income taxes and Social Security, and covered petitioner with workmen’s compensation, unemployment, disability and hospitalization insurance. Only one of the other companies deducted any taxes. Domani also exercised some control over petitioner’s work activities. The record further demonstrates that petitioner maintained an office in his home where he stored his samples. The room contained a telephone and typewriter [422]*422which were used for business purposes. All of the companies charged petitioner for samples and none of them reimbursed him for his expenses. On his income tax returns petitioner deducted expenses for office rent, telephone, postage, printing and samples. The record is devoid of any proof that the companies exercised supervision and control of the manner of the sales routine used by petitioner.

Initially, we note that the burden of overcoming this tax assessment rests with petitioner. The Court of Appeals in the recent case of Matter of Liberman v Gallman (41 NY2d 774) considered the issues raised by such a controversy and enumerated certain controlling principles applicable to their resolution. The court noted that our review is limited and that we should not substitute our judgment for that of the Tax Commission where reasonable minds may differ as to the probative force of the evidence (pp 777, 778). It was also stated therein that if there are any facts or reasonable inferences from the facts to sustain the determination of the Tax Commission, the court must confirm (p 777). Applying these principles to the instant case, we are unable to conclude that respondent’s determination is erroneous as a matter of law, arbitrary or capricious and, consequently, we must confirm (see Matter of Rawson v Tully, 60 AD2d 717).

The determination should be confirmed, and petition dismissed, without costs.

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60 A.D.2d 420, 401 N.Y.S.2d 581, 1977 N.Y. App. Div. LEXIS 14393, Counsel Stack Legal Research, https://law.counselstack.com/opinion/minkin-v-state-tax-commission-nyappdiv-1977.

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