(concurring and dissenting in part). I concur insofar as the determination is confirmed and1 dissent in respect of the modification thereof.
*75Section. 24-a of the General City Law enables, and the local law (Administrative Code of the City of New York, tit. B, ch. 46, as added by Local Law 44 of the 1948 Local Laws of the City of New York) imposes an excise tax for the privilege of carrying on or exercising for gain or profit within the city any trade, business, commercial activity, or the making of sales. So far as here relevant, the measure of the tax is gross receipts received in or by reason of any sale made, including property of any kind or nature, without deduction for cost of the property sold or any other expense. The petitioners’ exercise of the privilege of carrying on for gain or profit activities within the ambit of the statute and local law is clear. That the said activities in whole or in part may not have resulted in gain or profit is immaterial. (Matter of Bush Term. Co., 93 F, 2d 661; Matter of Kerner Coal Co, v. McColdrick, 257 App. Div. 821.)
The measure of the tax is in the broadest terms and expressly includes property of any kind received in or by reason of any sale. The absence of an exclusion in respect of property so received, in the light of the broad sweep of the measure of the tax, requires the agreed value of such property to be included in gross receipts. (Matter of Steinbeck v. Gerosa, 4 N Y 2d 302, 308-309; Hoffman v. City of Syracuse, 2 N Y 2d 484, 488.)
The tax is imposed by the statute and local law and not by the regulations. (Hoffman v. City of Syracuse, supra, p, 492.) The applicable regulations are in conformity with the statute and local law and we are not required at this time to pass on the validity or scope of other or antecedent regulations. The motives attending petitioners ’ sale of their property are immaterial. Relevant is the transfer of title from petitioners to the purchasers in respect of petitioners’ property. Thereby materializes the tax event, to wit, the sale from petitioners to their customer, be he dealer or consumer, The inevitable result is that the agreed value of the property received by petitioners in exchange is includible in the taxable gross receipts. The payment, either by petitioners or their vendee, of a sum which equalizes the difference between the properties involved serves to emphasize that a sale has eventuated which gives rise to gross taxable receipts.
The determination should be confirmed.
Breitel, J. P,, and Rabin, J"., concur with Stevens, J.; McNally, J., dissents in part and concurs in part in opinion ; M. M. Frank, J., deceased.
*76■_ Determination modified, on the facts and on the law, so as to hold that exchanges between dealers of new cars with or without some cash payment are not taxable. As so modified, the determination, insofar as it taxes the full trade-in value appearing in the bill of sale, and the proceeds from the resale of a used car received as a. trade-in, is otherwise confirmed, without costs. Settle order.