Manket v. State Tax Commission , 396 N.Y.S.2d 95 ( 1977 )

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 made after a hearing which denied petitioner’s application for a redetermination of unincorporated business taxes imposed under article 23 of the Tax Law for the years 1968 through 1972. The sole issue presented in this proceeding is whether substantial evidence supports respondent’s determination that petitioner had engaged in unincorporated business activity subject to article 23 of the Tax Law during the tax years in question. Petitioner represented three noncompeting jewelry firms, selling their products on a commission basis without reimbursement for his expenses, and makes the familiar assertion that his services were rendered as an employee of those concerns (see Tax Law, § 703, subds [b], [f]). As might be expected, some of the circumstances developed at the hearing tend to support his position, others favor respondent’s conclusion, and the balance are consistent with either interpretation of his business affairs. Although we are impressed by the fact that income and Social.Security taxes were withheld from petitioner’s earnings and he was covered for workmen’s compensation and unemployment insurance benefits, petitioner’s account cited few examples of specific control being exercised over him by his putative employers. On this state of the record we are unable to say that the instant determination lacks substantial evidentiary support and must, therefore, confirm it (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, Main, Larkin and Herlihy, JJ., concur.