Opinion
March 24, 1948.
Present — Hill, P.J., Brewster, Foster, Russell and Deyo, JJ.
Proceeding under article 78 of the Civil Practice Act to review a determination of the State Tax Commission, which denied petitioner's application for a revision or refund of income tax assessments against petitioner for the years 1942 and 1943, transferred to this court by order of the Albany County Special Term. The evidence, and particularly the partnership agreement, clearly indicates that the petitioner, a nonresident, was not a commission agent, but rather, was a partner in the New York firm known as Tankers Company, within the intent and meaning of subdivision 11 of section 350 Tax of the Tax Law. The test of petitioner's status under this section is whether or not he was engaged as a principal in the business venture, and the fact that he received a percentage of the gross earnings of the company rather than a share in its profits, is not conclusive. As a partner, petitioner is taxable within this State for his distributive share of the partnership income (Tax Law, § 364). The determination of the State Tax Commission unanimously confirmed, with $25 costs and disbursements.