Opinion
Argued October 24, 1978
Decided November 28, 1978
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department.
Arthur N. Read and Eugene G. Eisner for appellant.
Louis J. Lefkowitz, Attorney-General (Francis V. Dow, Ruth Kessler Toch and Lawrence J. Logan of counsel), for respondent.
MEMORANDUM.
Judgment of the Appellate Division affirmed, with costs. It is true that under the statute and regulations maintenance of an office or space solely for the display of merchandise or the maintenance of records shall not be deemed an office for the purpose of imposing the unincorporated business tax (Tax Law, § 703, subd [f]; 20 N.Y.CRR 203.14). Nevertheless a key factor determining the power to impose the tax is the "principal's" exercise of direction and control; that factor in the nature of things is generally a question of fact resolvable by the Tax Commission beyond review by the courts (20 N.Y.CRR 203.14 [d] [1]; Matter of Liberman v Gallman, 41 N.Y.2d 774, 778-779). The purported inconsistencies in the handling of appellant's Social Security deductions, unemployment insurance status, voluntary retirement plan, and personal income taxes, while cogent factors to be considered by the Tax Commission, are not conclusive as a matter of law sufficient to undermine the commission's determination.
Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE concur in memorandum.
Judgment affirmed.