Opinion
January 17, 1962
Present — Bergan, P.J., Coon, Gibson, Reynolds and Taylor, JJ.
Proceeding under article 78 of the Civil Practice Act to review a determination of the State Tax Commission sustaining assessments of unincorporated business taxes for the years ending June 30, 1952 to 1955 inclusive. The individual petitioners own, as tenants in common and as copartners, a large apartment house in Brooklyn. The building was divided into 128 apartments. During the years in question from 16 to 23 apartments were fully furnished and were rented as furnished apartments. For this reason the commission has held that petitioners were engaged in an unincorporated business and were not entitled to the exemption under section 386 Tax of the Tax Law providing that they should not be deemed so engaged "solely by reason of the holding, leasing or managing of real property". The determination is essentially a factual one; is in accordance with the regulations promulgated by the commission and falls within the rationale of Matter of 6 E. 112th St. Corp. v. State Tax Comm. ( 8 A.D.2d 542, affd. 8 N.Y.2d 930). Although that case involved a different statute, it determines substantially the same question as here presented. People ex rel. Rubin v. Tax Comm. ( 9 A.D.2d 47, affd. 8 N.Y.2d 922) is not controlling here and that decision must be confined to the particular facts present in that case. Determination unanimously confirmed, with $50 costs.