(DOWNLOAD) "Matter Jerry Bander v. State Tax Commission" by Supreme Court of New York # Book PDF Kindle ePub Free
eBook details
- Title: Matter Jerry Bander v. State Tax Commission
- Author : Supreme Court of New York
- Release Date : January 09, 1978
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 66 KB
Description
Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court at Special Term, entered in Albany County) to review a determination of the State Tax Commission which sustained an unincoporated business tax assessment under article 23 of the Tax Law for the years 1965 through 1973. The issue raised by this proceeding is whether respondents determination that petitioner is not an employee but an independent contractor and thus subject to the unincorporated business tax under section 703 of the Tax Law is supported by substantial evidence. During the tax years in question, petitioner was a salesman carrying several lines of womens apparel. While under a written contract to Russel Taylor, Inc., a manufacturer of fall, fur-like coats, petitioner, (with approval from Russel Taylor) represented several other manufacturers of spring coats. However, the major portion of petitioners selling time was devoted to Russel Taylor, and a substantial portion of his income for the later years in question was derived from sales of its merchandise. Petitioner was paid a commission based on sales made on the road and to those customers within his assigned territory to whom he personally made sales in the New York City showroom. He was not reimbursed for business expenses incurred while doing outside selling for his several principals. He maintained a room at his home where he kept his samples, order books and business papers; a deduction of one seventh of the operating expenses of the house was taken as a business expense on petitioners Federal income tax return. He itemized other business expenses, gratuties, entertainment expense and telephone. Subdivision (a) of section 701 of the Tax Law imposes a tax upon the income of unincorporated business wholly or partially carried on within the State. An unincorporated business is defined as any trade, business or occupation engaged in by an individual or an unincorporated entity (Tax Law, § 703, subd [a]). However, "The performance of services by an individual as an employee * * * of a corporation * * * shall not be deemed an unincorporated business, unless such services constitute part of a business regularly carried on by such individual." (Tax Law, § 703, subd [b].) Petitioner vigorously contends that Russel Taylor, Inc., was his employer; he was subject to its direction and control and that therefore the tax in question should not have been imposed. Respondent tax commission concluded that petitioner was not an employee of Russel Taylor, Inc.; he was an independent contractor selling the products of noncompeting firms in the coat and suit industry, none of whom exercised that degree of control and direction requisite to warrant the consideration of petitioner as [65 A.D.2d 847 Page 848]