Scott v. State Tax Commission

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 denied, in part, a petition for redetermination of a deficiency of unincorporated business tax under article 23 of the Tax Law. Petitioner is a professor of poultry nutrition in the College of Agriculture and Life Sciences at Cornell University. A recognized expert in his field, he has published extensively, lectured on related scientific and professional subjects, and acted as a consultant to various drug and feed firms. For these activities he receives additional compensation above his salary as a professor. A portion of this additional income has been charged with the unincorporated business tax, and the issue presented is whether or not it is exempt under subdivision (c) of section 703 of the Tax Law as income derived from the practice of a profession. There is no question but that petitioner’s teaching, writing and lecturing endeavors in the academic world constitute the practice of a profession, and his income derived from those sources is exempt under article 23 of the Tax Law (People ex rel. Tower v State Tax Comm., 282 NY 407, 412). However, when his services were obtained and compensation therefor was paid by various animal feed companies and drug concerns to keep their scientific personnel informed of the latest developments in poultry nutrition research, and to evaluate their feed formulae, there was a departure from the academic world and an entry into the world of business. Although petitioner asserts that he neither communicated with the sales departments of any of those concerns, nor received compensation based upon the success of his advice, in effect he was acting as a business consultant and was, though perhaps indirectly, assisting in the conduct of the business itself (Matter of Niles v Murphy, 34 AD2d 862, affd 31 NY2d 848; Matter of Backman v Bates, 279 App Div 1115, affd 305 NY 839; 20 NYCRR 203.11 [b] [1] [ii]). The commission has determined that petitioner failed in the burden of proving such activities were other than services to aid those firms in the conduct of their businesses and its determination is supported by facts in the’ record or facts from which such an inference may be reasonably drawn so as to sustain the tax imposed (Matter of Koner v Procaccino, 39 NY2d 258). Determination confirmed, and petition dismissed, without costs. Greenblott, J. P., Kane, Main, Larkin and Reynolds, JJ., concur.