Opinion
June 29, 1961
Appeal from a determination of the State Tax Commission that the petitioners were not entitled to exemption from the provisions of the unincorporated business tax pursuant to section 386 Tax of the Tax Law. The petitioners in 1951-1952 were engaged in the practice of consultants on labor and industrial relations and before the Tax Commission contended their business was a profession as defined by section 386 and they were entitled to the benefits thereof. The section, after defining what constitutes an unincorporated business, continues: "exclude the practice of law, medicine, dentistry, architecture * * * and any other case in which more than eighty per centum of the gross income is derived from the personal services actually rendered by the individual * * * in the practice of any other profession and in which capital is not a material income producing factor." We have considered the same general pattern of claimed exemptions in our most recent cases except that here there is the added claimed factor that such a business is a profession because certain colleges offer courses and degrees in such field of endeavor. While these factors may give some added prestige to the type of work, we have previously determined that the educational training and background and the type of work performed in and of itself did not mandate the Tax Department to find that the individuals so engaged were practicing a "profession". See decisions dealing with management consultants, actuarial consultants, materials handling consultants and commercial artists ( Matter of McCormick v. Bragalini, 8 A.D.2d 885; Matter of Kormes v. Murphy, 9 A.D.2d 1003, motion for leave to appeal denied 8 N.Y.2d 706; Matter of Sheahan v. Murphy, 12 A.D.2d 713; Matter of White v. Murphy, 11 A.D.2d 854, affd. 9 N.Y.2d 995). We do not perceive of any additional factors in this case of sufficient importance to distinguish it from the other cases cited above. Determination confirmed, with $50 costs. Bergan, P.J., Gibson, Herlihy and Reynolds, JJ., concur.