Pearl v. State Tax Commission , 416 N.Y.S.2d 100 ( 1979 )

Proceeding pursuant to CPLR article 78 (transferred to this court 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 under article 23 of the Tax Law for the years 1967, 1968, 1969, 1970, 1972 and 1973. The State Tax Commission determined that petitioner, a sales representative for Gravely Furniture Company, Inc. (Gravely), was subject to unincorporated business taxes for the years 1967, 1968, 1969, 1970, 1972 and 1973. It was concluded by the commission that sufficient direction and control was not exercised over petitioner’s activities by Gravely so as to result in an employer-employee relationship. The sole issue presented in this proceeding is whether there is substantial evidence to support respondent’s determination. We are of the opinion that there is and are to confirm. The record reveals that petitioner was compensated on a commission basis. Gravely did not withhold Social Security taxes and petitioner was not covered by workers’ compensation, disability insurance or a company pension plan. The record further reveals that petitioner filed Federal Schedule "C” and paid self-employment taxes for the years in question. It is also significant that another sales representative was hired by petitioner with the consent of Gravely and he was paid his commissions by petitioner. Petitioner claimed, however, that said commissions were paid to him by Gravely with the stipulation that they be turned over to the other sales representative. While Gravely assigned petitioner a specific territory and established prices and terms of sales, it exercised no direct supervision or control over the manner in which he allocated his time or accomplished his sales. Considering the record in its entirety, we are unable to say that petitioner was an employee as a matter of law and, therefore, the determination should not be disturbed (Matter of Liberman v Gallman, 41 NY2d 774; Matter of Singer v State Tax Comm., 55 AD2d 780). Determination confirmed, and petition dismissed, without costs. Sweeney, J. P., Kane, Staley, Jr., Main and Mikoll, JJ., concur.