(dissenting in part). I agree with the majority as to the receipts found taxable hut it appears to me that all of the uncontroverted receipts set forth in the stipulated facts are encompassed within the ambit of ‘ ‘ gross earnings ’ ’, as defined by section 186 of the Tax Law, and that the determination should be confirmed.
The scope of review in this court may be both upon the law and the facts (Tax Law, § 199). The burden of proof to show the assessment is illegal is upon the taxpayer (People ex rel. Freeborn & Co. v. Graves, 257 App. Div. 587) and the determination of the Tax Commission would not be set aside unless clearly shown to be erroneous (People ex rel. Hull v. Graves, 289 N. Y. 173; Matter of Britton v. State Tax Comm., 22 A D 2d 987, 988; 22 Carmody-Wait, New York Practice, § 162, p. 692). The petitioner in this case has not shown the respondent’s interpretation of section 186 to be clearly erroneous.
It is not the source of the revenue which necessarily controls and that is particularly so where the stipulated facts recite that “ The cash received by the Company in each of the transactions hereinafter described in this stipulation is accounted for as a capital transaction”.
The Tax Commission was not obligated to find, as a matter of law, as does the majority, that the receipts from the accidental destruction of capital was not taxable. The wording of the statute is sufficiently inclusive to sustain a finding that cash reimbursements from property damage claims and insurance claims are part of “ gross earnings ” which “ means all receipts from the employment of capital without any deduction ’ ’.
The determination of the State Tax Commission is neither erroneous, arbitrary nor capricious and should be confirmed, with costs.
Gibson, P. J., Taylor and Hamm, JJ., concur with Aulisi, J.; Heklihy, J., dissents in part, in an opinion, and votes to confirm.
Determination annulled and matter remitted to the State Tax Commission for further proceedings not inconsistent with the prevailing opinion herein, with costs to petitioner.