
    The People of the State of New York ex rel. Freeborn & Co., Inc., Relator, v. Mark Graves and Others, as and Constituting the State Tax Commission of the State of New York, Respondents.
    Third Department,
    November 20, 1935.
    
      Shiland, Hedges, Nicoll & Pelham [Arleigh Pelham of counsel], for the relator.
    
      John J. Bennett, Jr., Attorney-General [Wendell P. Brown, Assistant Attorney-General, of counsel], for the respondents.
   Per Curiam.

This is a review by certiorari of a final determination of the State Tax Commission affirming an annual franchise tax assessed against relator under article 9-A of the Tax Law, for the tax year beginning November 1, 1928, measured by the net income of the corporation for the year 1927.

11 The entire issue relates to the reasonableness of salaries of officers deducted as business expenses and whether there has been a diversion of profits under the guise of salaries.

The relator is engaged in the insurance brokerage business in the city of New York. Its capital stock consisted of 500 shares of the par value of $100 each, all of which has been issued. Its assets were of the par value of $164,730.85. Its liabilities amounted to $103,473.43, making its net worth $61,257.42.

The assessment against relator is $801.23. The State Tax Commission has arrived at this result by assuming that the total compensation allowed relator’s officers for 1926, the previous year, was $33,300, and that the compensation claimed for 1927 was $45,078.74. The Commission disallowed the difference between these two items, amounting to $11,778.74. The record shows that the total compensation claimed by the officers and allowed by the Commission in determining the relator’s tax for the previous year was not $33,300, but $47,254.70. The total compensation claimed by the officers in 1927 is $49,091.27, an increase over the previous year of $1,836.57, and not $11,778.74, as erroneously assumed by the Commission.

In view of such erroneous assumption by the State Tax Commission in arriving at its decision its determination is annulled, with fifty dollars costs and disbursements to the relator, and the matter remitted to the Commission to make a proper determination, based upon the evidence.

Hill, P. J., Rhodes, McNamee, Bliss and Heffernan, JJ., concur.

Determination annulled, with fifty dollars costs and disbursements to the relator, and matter remitted to the Commission to make a proper determination, based upon the evidence.  