Lakeview Futures v. Department of Finance

—Determination of the respondent Commissioner of Finance dated May 15, 1991 which assessed an unincorporated business tax deficiency of $76,845, unanimously confirmed, the petition denied and the proceeding brought pursuant to CPLR 7804 (g) (transferred to this Court by order of the Supreme Court, New York County [Herman Cahn, J.], entered on or about October 27, 1992) is dismissed, without costs or disbursements.

Respondents’ determination that petitioners’ activities constituted an unincorporated business and are, therefore, subject to the unincorporated business tax is supported by substantial evidence. Petitioners, a registered futures commodities merchant and its sole general partner, engaged in futures commodities transactions on • a retail basis and for their own account, and thus the exemption provided by section 11-502 (c) of the Administrative Code of the City of New York is inapplicable as petitioners were not trading solely for their own account. Petitioners have failed to carry their burden of proof to establish otherwise (Administrative Code § 11-529 [e]).

We have considered petitioners’ other arguments and find them meritless. Concur—Murphy, P. J., Sullivan, Kupferman, Asch and Tom, JJ.