Opinion
July 7, 1955.
Appeal from State Tax Commission.
Petitioner contends that his activities as a practitioner before the Interstate Commerce Commission and similar State regulatory agencies constitute the practice of a profession which exempts him from paying the unincorporated business tax imposed by article 16-A of the Tax Law. The words "`unincorporated business'" do not embrace "the practice of law, medicine, dentistry, architecture which under existing law cannot be conducted under corporate structure, 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 or the members of the partnership or other entity in the practice of any other profession and in which capital is not a material income producing factor." (Tax Law, § 386.) Petitioner obtained a license as a nonlawyer to practice as a Registered Interstate Commerce Commission Practitioner and, since 1939, has devoted his full working time in representing clients before the Interstate Commerce Commission and State regulatory bodies. He prepares applications, petitions, exceptions and briefs, appears at hearings, examines and cross-examines witnesses, conducts investigations and furnishes financial analyses and advice to those he represents. Capital is not a material factor in producing petitioner's income and more than 80% of his gross income is derived from personal services rendered by him. The sole question presented is whether petitioner's activities are "professional" within the meaning of section 386 Tax of the Tax Law. In Matter of Pollock v. Mealey ( 266 App. Div. 699), we held that income received from work as a Registered Interstate Commerce Commission Practitioner was derived from an unincorporated business and not a profession and nothing contained in this record requires us to reach a different result. A landscape architect and an industrial designer have been held to have professional status. ( Matter of Geiffert v. Mealey, 293 N.Y. 583; Matter of Teague v. Graves, 261 App. Div. 652, affd. 287 N.Y. 549. ) However, in those cases it was found that a number of universities had given academic recognition to those fields by bestowing degrees in landscape architecture and industrial designing. Although some institutions of higher learning offer semester courses in interstate commerce law and commission practice, none awards degrees in that specific field. Concededly, petitioner's activities require specialized skill and technical knowledge but his status does not require "knowledge of an advanced type in a given field of science or learning gained by a prolonged course of specialized instruction and study" which is essential to the term "professional" as used in the statute. ( People ex rel. Tower v. State Tax Comm., 282 N.Y. 407, 412.) Petitioner's status approximates that of a customhouse broker licensed to practice by the Treasury Department before the Customs Court, or a textile technologist, or an educational building consultant, each of whom has been held not to enjoy professional status within the meaning of the Tax Law. ( People ex rel. Tower v. State Tax Comm., supra; People ex rel. Robinson v. Graves, 259 App. Div. 956, motion for leave to appeal denied 284 N.Y. 821; Matter of Schmidt v. Bates, 282 App. Div. 980, motion for leave to appeal denied 306 N.Y. 986; Matter of Engelhardt v. Bates, 281 App. Div. 1053.) Determination confirmed, with $50 costs and disbursements. Bergan, Coon, Halpern and Zeller, JJ., concur; Foster, P.J., dissents.