dissents and votes to reverse in the following memorandum. Herlihy, J. (dissenting). Upon the present record there can be no doubt that the cigarettes were in New York for the purpose of being used. The petitioner obtained possession in Albany, New York, on December 14, 1973 and the delivery was to be in New York. We are not involved with either interstate or foreign commerce and the restrictions on taxing items in regard to such commerce (cf. Ammex Warehouse Co. v Procaccino, 85 Misc 2d 327, affd 55 AD2d 535). I agree with the majority that the cigarettes were not possessed by the petitioner for sale within the meaning of section 471 of the Tax Law and there was no sale by virtue of a transfer of possession within the meaning of subdivision 3 of section 470 of the Tax Law. However, pursuant to the plain language of section 471-a of the Tax Law, there was a use of the cigarettes by the petitioner and, since it has not been established that any of the exceptions specified in the said section 471-a are applicable, the tax was properly imposed. Pursuant to section 471-a of the Tax Law, the taxable event is not the theft or sale of the cigarettes but rather the possession for a purpose other than sale. The section provides in part: "For purposes of this article, the word 'use’ means the exercise of any right or power actual or constructive and shall include but is not limited to the receipt, storage or any keeping or retention for any length of time, but shall not include possession for sale.” Subdivision 1 of section 471 provides in part: "It shall be presumed that all cigarettes within the state are subject to tax until the contrary is established, and the burden of proof that any cigarettes are not taxable hereunder shall be upon the person in possession thereof.” The State Tax Commission found that the taxpayer had failed to meet the burden of overcoming the presumption. There is a rational basis for the commission’s decision and thus the judgment appealed from should be reversed, and the petition should be dismissed. [93 Misc 2d 449.]