
    In the Matter of L. Victor Weil, Appellant, against Spencer E. Bates et al., Constituting the Tax Commission of the State of New York, Respondents. In the Matter of Benjamin J. Weil, Appellant, against Spencer E. Bates et al., Constituting the Tax Commission of the State of New York, Respondents.
   — This is a review Trader article 78 of the Civil Practice Act of final determinations of the respondents made on September 4, 1946, affirming taxes and penalties assessed against the appellant L. Victor Weil for the calendar years 1937, 1940 and 1941, and against the appellant Benjamin J. Weil for the calendar years 1940 and 1941. With respect to the appellant L. Victor Weil the question is whether a deduction claimed in 1937, of $56,650.28 as a bad debt should be allowed or whether the debt was actually sustained in the year 1932. The commission decided that the deduction should be disallowed. The proof shows that no actual loss was sustained. The second question is whether or not the partnership of B. J. & L. V. Weil was engaged in the business of buying, selling and operating real property in the years 1940 and 1941. The commission determined that the operations of the partnership constituted the carrying on of a business within the meaning of article 16 of the Tax Law and that the profits realized were subject to the minimum normal and emergency taxes. The appellants contend that the profit realized by them was subject to the net capital gain tax on the ground that they were not carrying on a business. The evidence sustains the determination of the commission. Determination confirmed, with $50 costs and disbursements. Heffernan, Foster and Russell, JJ., concur; Hill, P. J., dissents; Brewster, J., dissents and votes to annul the determination and to remit to the Tax Commission the Matter of the Application of L. Victor Weil and concurs in the decision for confirmation in the Matter of the Application of Benjamin J. Weil.  