(dissenting). The principal question for determination is whether petitioner’s gross income for the years 1935-1937, inclusive, was to the extent of more than eighty per cent derived from personal services actually rendered by him in the practice of a profession in which capital was not a material income-producing factor.
Petitioner asserts that for the years in question he was engaged in the practice of a profession within the meaning of section 386 of the Tax Law and that, consequently, he is exempt from the unincorporated business tax.
Originally the word “ profession ” was limited to the three learned professions, divinity, medicine and the law. To this group that of arms was later added. In our day the term has become very elastic and we have traveled far beyond the well-known classical professions of earlier days. The denotation of the word “ profession ” has been extremely liberalized. Quite a variety of occupations are recognized as professions both by statute and the regulations of the State Tax Commission.
It is difficult if not impossible to lay down any strict legal definition of the term because the line of demarcation may vary from time to time. Scientific learning and knowledge, however, are essential requisites in any occupation which may properly be regarded as a profession. I am convinced that the term professional employment can only relate to those occupations universally classed as professions, the general duties and characters of which courts must be expected to understand judicially.
The occupation of petitioner is termed by him as industrial designing. His formal education consisted of a high school course followed by three and one-half years’ training in the Art Students’ League. He has become successful in his chosen field of endeavor. He has designed photographic equipment, optical goods, meteorological and thermal instruments, glassware, mimeograph machines, motor cars, gas ranges, gas-heating and air-conditioning equipment, light-weight coaches, cash registers, internal grinders, refrigerators, vacuum cleaners and many other appliances.
Petitioner makes no claim that he is authorized to practice as a licensed architect or a graduate engineer. In fact, he has no degree from any school as an industrial designer. Our State Department *657of Education issues no license to an industrial designer. It is conceded that no legal reason exists why petitioner’s business cannot be incorporated. It seems to me that petitioner’s calling cannot possibly be regarded as the practice of a profession. He is neither an architect nor an engineer nor has he had any extensive course of specialized instruction and study in a given field of science. A background of practical training and education does not of itself raise the dignity of his occupation to that of a profession. We are not justified in extending by judicial construction an exemption statute so as to cover a business evidently not intended by the Legislature to be so embraced.
The courts have held that life insurance agents (Matter of Recht v. Graves, 257 App. Div. 889; leave to appeal denied, 281 N. Y. 886), insurance brokers (Matter of Otis v. Graves, 259 App. Div. 957), undertakers and embalmers (O’Reilly v. Erlanger, 108 id. 318), custom house brokers (People ex rel. Tower v. State Tax Comm., 257 id. 1064; affd., 282 N. Y. 407; People ex rel. Robinson v. Graves, 259 App. Div. 956; leave to appeal denied, 284 N. Y. 821) and textile brokers (People ex rel. Seidman v. Graves, 260 App. Div. 898) are not professionals. It is obvious to us that the practice of a profession implies a vocation requiring higher education and learning.
The determination of the State Tax Commission should be confirmed, with fifty dollars costs and disbursements.
Determination annulled, with fifty dollars costs.