While I agree with the majority that the assessment of deficiency issued for the fiscal year 1969 was not made within the three years time limitation provided by section 1083 of the Tax Law, I am unable to agree that the assessment for the fiscal year 1970 should be annulled and I, therefore, vote to modify.
By statute, the granting or denying of petitioners’ right to file returns on a combined basis is discretionary with the commission. Our review is limited to whether its determina*418tion is supported by substantial evidence and not arbitrary or capricious. (Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, 34 NY2d 222.) The record reveals that Improvement was engaged in the sale of land; that Country Club was created to aid Improvement in that purpose by the development and operation of a golf course; that Country Club was open to the general public and provided its own independent service apart from Improvement; that the members of Country Club did not have to be purchasers of Improvement. In my view, the record substantiates the commission’s determination that the profit and loss of each corporation was primarily due to its own operation and not due to intercompany transactions. It is not arbitrary or capricious and is supported by substantial evidence. Consequently, the determination should be modified so as to exclude the tax deficiency assessment against petitioners for the fiscal year ended April 30, 1969, and, as so modified, confirmed.
Koreman, Main and Larkin, JJ., concur with Herlihy, P. J.; Sweeney, J., concurs in part and dissents in part in a separate opinion.
Determination annulled, with $50 costs, and matter remitted for proceedings not inconsistent herewith.