Opinion
December 29, 1942.
This is a proceeding under article 78 of the Civil Practice Act and the Tax Law (Cons. Laws, ch. 60) for the purpose of reviewing the determination and decision of the State Tax Commission. The petitioners were a partnership and were engaged in New York city as general agents for the AEtna Life Insurance Company. They had a large number of employees on whom they paid Federal social security and New York State unemployment taxes. They appointed soliciting agents. They carried on a business under a contract with the AEtna Life Insurance Company from which they received large amounts and from which each of the partners derived a very substantial income. They were required to devote all their time and attention to the business and it was conceded that they were not employees of the company. They were engaged in the soliciting of insurance and the collection of premiums for the AEtna Life Insurance Company in the territory covered by the office in New York City. They contracted to employ and train a sufficient number of efficient agents to represent the company in the territory. The quantity and training and the number of agents to be trained was in their hands. They received some allowances for salaries but not within $50,000 of what they were required to pay. The rental allowance allowed them was not sufficient to cover the rent that they were required to pay. The choosing of clerical, stenographic and supervisory help was clearly a matter for the partnership to decide and determine upon. The compensation of the firm was derived from an agreement for commissions determined on the basis of first year premiums and renewals and certain collection fees. The petitioners place their reliance upon the fact that the services rendered by them as general agents for the AEtna Life Insurance Company constituted services rendered by them as fiduciaries within the meaning of section 386 Tax of the Tax Law. The business of the partnership did not constitute a fiduciary as defined and excepted from section 386 Tax of the Tax Law because the compensation received by the partnership constituted receipts of a business regularly carried on by said partnership for profit. Determination of the State Tax Commission confirmed with fifty dollars costs and disbursements. Hill, P.J., Crapser, Bliss, Heffernan and Foster, JJ., concur.