We respectfully dissent. The taxing authority’s decision should not be disturbed unless clearly shown to be erroneous. The judicial function is limited in such instances. If a rational basis for the decision can be adduced from the record, the determination should be upheld (Matter of Bes Corp. v Tully, 46 NY2d 1038).
The record discloses that the joint venture agreement provided specifically for contributions of operating capital to the joint venture. It did not enumerate rental equipment as contribution of capital. The agreement also provided that no distribution of profits was to be made prior to the completion of the project. This term flies in the face of *7petitioner’s contention that the “rental” payments were really distribution of profits. Additionally, characterization of the transactions as rental in the invoices sent by the two corporations to petitioner and its checks in payment for the rentals contradicts its belated averment that the payments were not rentals. Respondent’s reliance on the joint venture agreement was entirely rational (see Matter of Heist Corp. v State Tax Comm., 50 NY2d 438).
Under the sections of the Tax Law dealing with sales and use taxes, a sale includes a rental (Tax Law, § 1101, subd [b], par [5]). Generally, in order for the sales tax to be applicable, there must have occurred a transfer of ownership or control of tangible personal property to petitioner (Tax Law, § 1105, subd [a]; see Bathrick Enterprises v Murphy, 27 AD2d 215, 23 NY2d 664). With rentals, the question is whether the transaction gave petitioner full dominion and control over the vessels and equipment (Matter of Concrete Delivery Co. v State Tax Comm., 71 AD2d 330, mot for lv to app den 49 NY2d 709). Petitioner’s claims that the requirements of a rental were not met here should be rejected. During the entire time of construction, it was petitioner who paid the two corporations $1,500 per person for all salaried personnel working on the machinery even though they were listed as employees on the two corporations’ payrolls. Hourly employees were on petitioner’s payroll. The manager of the construction project indicated that the progress of the project was not to be jeopardized by any decision of the two corporations to use or remove the equipment. It is rational to conclude upon these facts that the equipment was being used for joint venture purposes, that the personnel directing its operation were acting on behalf of the joint venture, and that the limited right of the corporations to remove personnel or equipment was not inconsistent with a transfer of possession and control to petitioner. The record contains substantial evidence that possession of the rental equipment passed to petitioner.
Respondent’s determination should be confirmed and the petition dismissed.
Kane, J. P., and Main, J., concur with Harvey, J.; Mikoll and Yesawich, Jr., JJ., dissent and vote to confirm in an opinion by Mikoll, J.
*8Determination annulled, with costs, and matter remitted to respondent for further proceedings not inconsistent herewith.