(concurring in part and dissenting in part). We respectfully dissent from the majority’s decision as to petitioner Eli Rosenblatt. In reviewing a determination made by respondent State Tax Commission, we must determine if there was a rational basis for the Tax Commission’s determination and substantial evidence in support thereof (Matter of Donahue v Chu, 104 AD2d 523). It is the petitioner’s burden to prove that a deficiency assessment is improper and that the record has insufficient facts to support the Tax Commission’s determination (Matter of Fisher v State Tax Commn., 90 AD2d 910, 911).
Rosenblatt’s primary contention is that he was not a person required to collect, account for and pay over withholding taxes. The record discloses that he was hired as the corporation’s comptroller and that he had considerable experience in such work. It was his responsibility to prepare and file tax returns. He signed five of the returns in issue which were filed with no remittance accompanying them. Petitioner Eugene Sole, treasurer of the corporation, and Milton Cantor, one of its directors, testified that Rosenblatt, together with the hospital administrator, Seymour Reid, was responsible for the day-to-day financial affairs of the corporation. As such, Rosenblatt was responsible for preparing tax returns, paying taxes and *133creditors. Although Rosenblatt did not have control over the payroll department where tax withholding took place, the tax moneys were commingled in the general corporate account from which he issued checks and over which he had control.
From the facts adduced, we conclude that the determination against Rosenblatt is based on a reasonable inference and should be affirmed (see, Matter of MacLean v State Tax Commn., 69 AD2d 951, affd 49 NY2d 920).
Neither can Rosenblatt absolve himself from responsibility by contending that his actions were not willful. Rosenblatt was an experienced comptroller. He knew that tax withholding funds were being placed in the corporation’s general account and he, nonetheless, failed to remit them to the Government with the tax returns signed by him. Additionally, he admitted at the hearing that he knew that taxes were not being paid and that this violated the law. Rosenblatt’s activities were "willful” within the meaning of the law (see, Matter of Ragonesi v New York State Tax Commn., 88 AD2d 707, 708).
Main, J. P., and Levine, J., concur with Harvey, J.; Mikoll and Yesawich, Jr., JJ., concur in part and dissent in part in an opinion by Mikoll, J.
Determination, in proceeding No. 1 annulled, and petition granted, with costs.
Determination, in proceeding No. 2, confirmed, and petition dismissed, with costs.