(dissenting in part). -1 agree substantially with the conclusions reached in the majority and concurring opinions except as to the conclusion that allocation is required. I perceive no constitutional, statutory or regulatory, basis for such a holding. Article 305 of the regulations which provides for the method of allocation with respect to holding companies refers to such entities only in the event they could be considered taxable at the “ financial business rate in conformity with allocations generally provided for such category of businesses. ■ There was *323no corresponding regulation for the years in question as to businesses taxable at the “ general business ” rate.
Thus, unless the Comptroller’s prior practice of'allocation — albeit without a mandate — requires its continuance, allocation may not be directed. No support for a rule of law requiring such continuance is advanced by petitioner. The petitioner is a holding company whose sole income — with minor inapplicable exceptions — consists of dividends and interest received from subsidiaries. Regardless of where those subsidiaries are located the business of the holding company was conducted solely in the City of New York. That being so no allocation of such receipts is required.
Accordingly I vote to remand the matter to the respondent but only for the purpose of further consideration on the question of penalties.
B beg ax and Bastow, JJ., concur with Stevexs, J.; Eager, J., concurs in separate opinion; Rabix, J. P., dissents in part in opinion.
Determination annulled, on the law and in the interests of justice, without costs, and the matter remanded to respondent to recompute the tax on an allocation basis, and to consider further the question of penalty (cf. Matter of McCall Corp. v. Gerosa, 2 A D 2d 358).