In the Matter of Mabel E. Britton, as Executrix of George H. Britton, Deceased, Petitioner, v. State Tax Commission, Respondent, 22 A.D.2d 987

Per Curiam. In an

article 78 [Civ. Prac. Act] proceeding transferred here for initial determination by an order of the Supreme Court at Special Term petitioner seeks to review and annul a determination of the State Tax Commission which sustained assessments of unincorporated business taxes pursuant to

article 16-A of the Tax Law against her deceased husband for the years 1954 and 1955.

Deceased’s earnings accrued from sales commissions derived from activities as the exclusive manufacturer’s representative of 11 non-competing corporations within an area principally comprising the State of New York with the exception of New York City; he classified his occupation as that of a sales engineer; the principals exercised no supervision or control in respect to the manner in which his sales endeavors were pursued requiring only successful results; none of the several corporations paid unemployment insurance or social security on his earnings or deducted withholding taxes therefrom; deceased paid his own travel and incidental expenses for which he was not reimbursed; in personal income tax returns which he filed for the years in question he deducted expenses incurred in the maintenance of an office in his home.

The sole fact that a person is a multi-line salesman is an insufficient basis to deem him engaged in an unincorporated business. To hold the salesman so engaged, it must be found that (

a) he maintains an office, or (

b) employs one or more assistants or (

c) otherwise regularly carries on a business. The scope of our inquiry is restricted to the question whether upon the record presented the determination is clearly erroneous as a matter of law. (Matter of Harte v. Chapman, 283 App. Div. 551, mot. for lv. to app. den. 307 N. Y. 941; People ex rel. Hull v. Graves, 289 N. Y. 173, 177.) We find such not to be the case here. Determination confirmed, without costs. Giibson, P. J., Herlihy, Reynolds, Taylor and Aulisi, JJ., concur.