November 12, 1953.
Appeal from State Tax Commission.
Present — Foster, P.J., Bergan, Coon, Halpern and Imrie, JJ.
The work engaged in by petitioner was described by him as that of orchestral conductor or musical director. During the year involved petitioner acted as an orchestra conductor on two radio programs, one known as the "Cavalcade of America" sponsored by E.I. du Pont de Nemours and Company, and the other known as the "Telephone Hour" sponsored by the American Telephone Telegraph Company. Petitioner claims exemption from the unincorporated business tax on the ground (1) that he was an employee, and (2) that he is practicing a profession and derives more than 80% of his gross income from personal services. The record does not support his contention that he was an employee. The second contention is likewise without merit. Petitioner is a musician with extensive education and experience. He contends that he was merely paid a fee for his services as conductor of an orchestra. There is substantial evidence in the record, however, that he was engaged in the business of selling two complete weekly radio programs which involved many elements beyond his services as conductor. Among many other things, he hired and paid the musicians in one orchestra. The entire cost was paid to him and he in turn paid the musicians; he spent money and effort in promotional work, advertising and similar activities. The record would justify a finding that he was engaged in selling a "package" to wit: the entire weekly radio program, of which his services as conductor were only a part. In any event, from this record we may not say as a matter of law that the determination of the Tax Commission was without substantial evidence to support it. ( Matter of Engelhardt v. Bates, 281 App. Div. 1053.) Determination unanimously confirmed, with $50 costs.