I agree with the majority that the taxpayer is entitled to the benefits of the provisions of section 386 of the Tax Law and therefore, is not subject to the unincorporated business tax. I likewise agree that his business as a mortgage broker is not entitled to the classification of a profession. Further, for the additional reasons set forth below, it is my opinion that the majority is correct in determining that the petitioner’s gain from the sale of the “ Olcott ” is not a capital gain.
The taxpayer in his 1951 returns set forth one schedule with reference to the operations of the ‘ ‘ Olcott ’ ’ which consisted of a statement showing the income from rents, depreciation, repairs and other expenses, the resultant figure being a loss in the operation of the property.
In a separate schedule in the same tax return, the gross profits of the “ Olcott Restaurant” were set forth and after business deductions, the result of the operation of the restaurant was a loss. The taxpayer used these losses to his advantage with the result that before deducting such losses he had total income in excess of $70,000, but after deducting such losses he showed a net taxable income of less than $3,000 and paid a normal tax of $70.48. The manner in which he elected to file his return established that the “ Olcott”, as to the operation of the real estate and restaurant, was a business project in accordance with the provisions of article 16 (Personal Income Tax) of the Tax Law. The method used in the tax form return to report the financial transactions of the taxpayer may be controlling as to the type of operation of any or all reported items. A taxpayer cannot take all the business benefits and then claim he is not operating a business pursuant to the Tax Law. Accordingly, all profits from the installment sale of the “ Olcott ”, subsequent to 1951, are subject to personal income tax treatment.
The majority have decided to remit the proceedings for a further determination as to the application of the Statute of Limitations, but I perceive no necessity for such procedure and accordingly dissent as to this aspect of the case. There is no dispute as to the facts but, indeed, on the oral argument before this court the Attorney-General conceded that the taxpayer had made a full disclosure and there was no claim of misrepresentation or fraud. Under such circumstances it is a question of law as to whether the three- or five-year statute applies and in my opinion, the three-year statute is applicable. Former subdivision 1 of section 373 provided: “ [T]he amount of tax due under any return shall be determined by the tax *326commission within three years after the return was made * * *. Where there has been omitted from gross income or capital gain, as stated in a return, an amount which should have been included therein and which is in excess of twenty-five per centum of the amount of gross income or capital gain, as so stated, the amount of tax due may be determined within five years after the return is filed.”
It is admitted that there was no “ omission ” in this taxpayer’s return but rather a mistake in the interpretation of the Tax Law as to whether income tax should be paid on the basis of ordinary income or capital gains. The unincorporated and the personal income tax returns of this taxpayer were stapled and filed together as required by the department. Their interrelation was evident upon the most casual inspection. The unincorporated return referred to the operation of a restaurant at the “ Olcott, 27 West 72nd Street, N. Y. C.”. The personal income tax return, Schedule A, referred to the operation of the “ Olcott Restaurant” and Schedule E entitled “Gain from Capital Assets ” stated “ Details of Installment Sale of 27 West 72nd Street, N. Y. C.”. Under such circumstances, the returns are complementary and supplemental to each other.
Courts should be realistic in the interpretation of this section. The law does not say that a taxpayer must file his return under the highest assessable method and then apply for a refund and upon proving his claim seek a rebate. If such were the fact, the normal three-year period would govern.
There was no “ omission” as this return was filed. Where there is a full and complete disclosure and no claim of misrepresentation or fraud, a taxpayer is entitled to the protection of the three-year period. The fact that upon subsequent examination by the Tax Department it is determined that the taxpayer’s report erroneously placed income in the category of capital gains instead of ordinary income does not justify the Tax Department in levying an assessment for such additional income after the three-year period. The understatement of total tax due is not the controlling issue.
While there is some distinction between the Federal and New York State statute as to the application of capital gains, both Governments seek to obtain the same result.
"It has long been the policy of our courts to adopt, whenever reasonable and practical, the Federal construction of substantially similar tax provisions ”. (Matter of Marx v. Bragalim, 6 N Y 2d 322, 333; emphasis supplied.)
In regard to Federal income tax returns, regulation section 301.6501(e)-! (subd. [a], par. £1], cl. [ii]) provides that *327“ [a]n item shall not be considered as omitted from gross income if information, sufficient to apprise * * * of the nature and amount of such item, is disclosed in the return or in any schedule or statement attached to the return.” (Code Fed. Reg., tit. 26, § 301.6501 [e]-l; see, also, Internal Revenue Code, § 6501, subd. [e], par. [1], cl. [A], sentences [i], [ii].)
The facts and circumstances relating to this particular taxpayer and his tax returns necessitate my concluding that the three-year Statute of Limitations provided for in subdivision 1 of section 373 of the Tax Law is controlling as a matter of law as to the 1951 return and therefore there is no reason for remission to the Tax Commission.
Accordingly, as to this aspect of the ease I dissent and vote to reverse.
Coon, J. P., Gibson, Reynolds and Taylob, JJ., concur in Per Curiam opinion; Herlihy, J., concurs in part and dissents in part, in opinion.
Determinations, insofar as they sustain assessments of unincorporated business taxes upon gains on sale of business property and insofar as they sustain the assessment of additional personal income tax for the year 1951 upon gain on sale of business property and in each instance deny applications for revision or refund, annulled, and matters remitted for further proceedings not inconsistent herewith, and in all other respects confirmed, without costs.