(dissenting). I dissent and vote to affirm. We all agree that the petitioner Voorhees is a distinguished musician with an extensive educational background and experience and, as such, is recognized as one of our nation’s leading orchestra conductors and musical directors. If that was all that is involved there would be little difficulty in qualifying his vocation as a profession within the commonly accepted definition as * ‘ one skilled in the art or science of music, a conductor or performer ” (see Webster’s and Century Dictionaries, Collier’s Encyclopedia). However, the State Tax Commission, in dealing with the petitioner’s claim of exemption for liability for payment of an unincorporated business tax, was not limited to a consideration of his education and experience, but could look into the nature and character of his activities. This is what the Tax Commission did here. They accorded the petitioner, at his request, a full dress hearing. Evidence was submitted, viz., ■ the personal income tax return filed by the petitioner for the year 1941 which, by the way, did not state the nature of petitioner’s occupation or his business or profession, oral testimony by the petitioner, his auditor and a representative of an advertising agency. The State Tax Commission, in the exercise of their administrative functions, determined as a fact that the petitioner was carrying on an unincorporated business for the *193purposes of the unincorporated business tax imposed by article 16-A of the Tax Law, and that the moneys received from the broadcast of the American Telephone and Telegraph Company known as the “ Telephone Hour ” and of DuPont’s “ Cavalcade of America ’ ’ constituted receipts in the course of business. The Appellate Division unanimously confirmed such determination (282 App. Div. 988) on the ground that “ from this record we may not say as a matter of law that the determination of the Tax Commission was without substantial evidence to support it ’ ’. In such a setting the determination is subject to our review only within the scope of the substantial evidence rule and may not be disturbed unless shown to be “ clearly erroneous ” and so lacking in support in the evidence as to be “ arbitrary and capricious ’ ’ (Matter of Calder v. Graves, 261 App. Div. 90, 95, affd. 286 N. Y. 643; Matter of Stork Restaurant v. Boland, 282 N. Y. 256).
To become entitled to an exemption, the petitioner is required to show that he was practicing his profession and derived more than 80% of his gross income from personal services and that capital was not a material income-producing factor. In this case the latter element may be disregarded, as it is conceded that capital is not a material income-producing factor.
In making his income tax return for the year in question, the petitioner reported gross amount received $101,142.60 and then
listed as deductions:
Musicians’ payroll .......................$54,741.00
Arrangers ................................11,035.50
Payroll tax............................... 2,907.24
or a total of..................................$68,683.74
leaving an admitted gross income of $85,099.85 concerning which more will be said later.
While the musicians’ expense was an entirely legitimate deduction for purposes of computing net income tax due, its significance as an indication of the scope and character of his activities for determining the legal relationship and liability for an unincorporated business tax may not be overlooked when the record is viewed as a whole.
The income tax return as filed also listed other deductions in the amount of $44,213.82 which were allowed in the amount of *194$39,213.82. This expense included such items as $13,450 for agents’ commissions, $17,279.85 for entertaining, promotion etc., $4,350 for professional fees, $2,335.41 for office rent, electricity and telephones, and $2,551.64 for advertising, publicity, etc.
The petitioner says that his individual tax return as filed should not be relied on for anything except his own net personal fees per broadcast, viz.: $1,000 for the Telephone Hour and $500 for the DuPont hour; that while the return, on its face, may be susceptible of the interpretation placed on it by the commission, the proof demonstrates that in actual practice and, as a matter of fact, petitioner was not an independent contractor engaged in an unincorporated business but was simply practicing his profession as an employee. He points to the circumstance that his fee was in each instance fixed at a stated amount; that he was not the actual employer of the musicians making up the respective orchestras, as he could not be, under the union rules; that their wages were fixed by the union and the moneys received by him were for their account and were forthwith paid out in a wash transaction on which he made no profit. He asserts that the inference to be drawn from the face of the return must yield to the proof of what actually occurred.
The Tax Commission rejected this contention and refused to grant an exemption. There is basis in the record for such a conclusion. While the money received over and above the fixed fee in each instance was for expense incurred in producing the program, it is quite apparent that the fee paid was for something more than the direction of the orchestra; it was, in fact — or at least the board could reasonably so find — payment in part for use of his name as a conduit to avoid the consequences that might accrue to the sponsors for a direct hiring of the musicians and arrangers.
Tax cases, generally speaking, depend on their own set of facts and to that extent are sui generis; hence, the difficulty of laying down a broad general rule of universal application. The Legislature provided a standard for exemptions and named the long-recognized learned professions, but left it open to the Tax Commission to also exempt “ any other cases in which more than eighty per centum of the gross income is derived from the personal services actually rendered by the individual * * * *195in the practice of any other profession and in which capital is not a material income producing factor.” (Tax Law, § 386.) It thus charged the Tax Commission in the first instance with discretionary power to determine the petitioner’s professional status. In the exercise of such discretion it is now no longer open to doubt that if there is basis in the record or justification for the administrative body’s determination, it will be accepted and will not be set aside unless clearly shown to be erroneous (Matter of Mounting & Finishing Co. v. McGoldrick, 294 N. Y. 104). This principle was applied in the affirmance of the negative ruling in Matter of Backman v. Bates (279 App. Div. 1115, affd. 305 N. Y. 839) to hold the petitioner’s vocation as an " economist ’ ’ was not entitled to professional status for purposes of an exemption from liability for payment of an unincorporated business tax. In Matter of De Vries v. Graves (266 App. Div. 1030, affd. 292 N. Y. 529) (furniture designer), the equities in favor of the petitioner were indeed strong — much more so than here —- but nonetheless we affirmed the decision of the Appellate Division which had confirmed the adverse determination of the Tax Commission as a matter of administrative discretion.
This case on its facts may not be removed from the operation of the general rule and on this record it may not be said that the negative determination was so unreasonable, arbitrary and capricious as to be erroneous as a matter of law. The petitioner and his accountant both testified that the fee-plus method used in paying for these programs through the petitioner’s account was because these matters (the incidents flowing from a direct employment) “ were so complicated and had so many different interferences ” and Arthur Pryor, testifying for the petitioner, referred to it as ‘ ‘ a serious problem and someone in the Company conceived the idea that Mr. Voorhees could assume the responsibility if the DuPont Company reimbursed him for whatever the costs amounted to Such an arrangement might well be regarded by reasonable men as a subterfuge in avoidance of a responsibility the sponsors did not care to assume. For all practical purposes, the sponsors were limiting their liability for radio broadcasts, except to the extent of paying the agreed price, by using a device designed to absolve them from any responsibility to the performers and arrangers for all *196purposes. Such an arrangement, as the Appellate Division well said ‘ ‘ involved many elements beyond his services as conductor ” (282 App. Div. 988).
The order appealed from should be affirmed, with costs.
Conway, Desmond and Van Voobhis, JJ., concur with Fboessel, J.; Dye, J., dissents in an opinion in which Lewis, Ch. J., and Fuld, J., concur.
Order reversed, etc.