Avon Products, Inc. v. Department of Finance

—Determination of respondent Department of Finance of the City of New York, dated February 26, 1992, sustaining a Notice of Determination which asserted deficiencies in petitioner’s New York City General Corporation Tax for the calendar years 1980, 1981 and 1982, unanimously confirmed, the petition denied, and the proceeding (transferred to this Court by order of the Supreme Court, New York County [Ira Gammerman, J.], entered August 18, 1992) dismissed, without costs. 349 The Commissioner properly exercised her discretionary authority to adjust the allocation formula so as to exclude construction in progress from the property factor because of its inherent inability to generate income (see, Administrative Code of City of NY § 11-604 [8]; Matter of Barney’s, Inc. v Department of Fin., 93 AD2d 642, affd 61 NY2d 786). Application of Policy Bulletin 5-84 was a valid exercise of discretion and, since the Bulletin is neither a rule nor regulation, it need not have complied with the promulgation requirements of New York City Charter former § 1105 (present § 1041 et seq.). Concur — Sullivan, J. P., Wallach, Kupferman and Rubin, JJ.