MATTER OF BES CORPORATION v. TULLY, 46 N.Y.2d 1038 (1979)

416 N.Y.S.2d 588, 389 N.E.2d 1108

In the Matter of BES CORPORATION, Respondent, v. JAMES H. TULLY, JR., et al., Constituting the State Tax Commission, Appellants.

Court of Appeals of the State of New York.Argued February 16, 1979
Decided April 3, 1979

Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department.

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Robert Abrams, Attorney-General (Nigel G. Wright, Ruth Kessler Toch and William J. Kogan of counsel), for appellant.

Stanley M. Spiegler for respondent.

MEMORANDUM.

The judgment appealed from should be reversed, with costs, and the determination of respondent commission should be reinstated. In an article 78 proceeding challenging a determination of the State Tax Commission which assesses sales tax liability following a hearing required by section 1138 of the Tax Law, the court must sustain that determination unless it is not supported by substantial evidence (CPLR 7803, subd 4). The evidence before the commission in this instance showed

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that petitioner shipped the school uniforms directly to the students’ parents, rather than to the parochial schools, and billed the parents directly, rather than the schools. This evidence suffices to support the commission’s determination that the sales were made by petitioner directly to the parents, and not “by or to” the tax-exempt schools (see Tax Law, § 1116). Accordingly, it was error for the Appellate Division to set aside the determination of the commission.

Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER and FUCHSBERG concur in memorandum.

Judgment reversed, etc.