Fischer v. State Tax Commission , 484 N.Y.S.2d 345 ( 1985 )

Mikoll, J.,

concurs in part and dissents in part in the following memorandum. Mikoll, J. (concurring in part and dissenting in part). The record discloses that during the tax period in question, petitioner’s employer was doing business in New Jersey and had eight building projects under way there. As a licensed structural engineer assigned to these projects, petitioner of necessity had to be physically present not only for on-site work, but readily available for the myriad consultations attendant on such work. Petitioner’s supporting documentation indicates that one project alone lasted IV2 years with at least three change orders requiring redesign by petitioner. This documentation substantiates far in excess of the days the majority would credit to petitioner as necessary to his employer’s business.

But of greater relevance to the entire matter is the fact that it is conceded by the State Tax Commission that an engineer’s unique function requires his ready availability at the job site. Further, I find that the Tax Commission’s findings of fact contradict its conclusion of law. The facts totally support petitioner’s contention that he worked in New Jersey out of business necessity. This matter is totally different from the plethora of cases involving employees whose claims of tax exemption were disallowed because they could have just as easily performed their work at their employer’s office (see, e.g., Matter of Wheeler v State Tax Comm., 72 AD2d 878). It approximates, rather, the situation dealt with by the Tax Commission in Matter of Fass v State Tax Comm. (68 AD2d 977, affd 50 NY2d 932) and Matter of Budinich v State Tax Comm. (TSB-H-82-[95]-1, May 1, 1981).

In view of the documentation submitted, petitioner’s uncontradicted testimony and the concession of the Tax Commission, there is sufficient evidence in the record to support the remaining 115 days petitioner claimed he worked in New Jersey.

Accordingly, the Tax Commission’s determination should be annulled and the matter remitted to the Tax Commission for a recalculation of petitioner’s tax deficiency.