
    In the Matter of Carol O’Cleireacain, as Finance Commissioner of the City of New York, Appellant, v New York City Tax Appeals Tribunal et al., Respondents.
    [612 NYS2d 570]
   Determination of respondent New York City Tax Appeals Tribunal (Tribunal), dated August 21, 1992, which nullified petitioner’s assessment of a utility tax deficiency on respondent Varsity Transit, Inc. (Varsity), unanimously confirmed, the petition denied and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, New York County [William McCooe, J.], entered on or about April 13, 1993) dismissed, without costs.

A rational basis exists for the Tribunal’s determination that, as a matter of law, reimbursements made to Varsity by an affiliated company for the latter’s use of the former’s buses and personnel did not constitute taxable income. It is not disputed that Varsity is subject to a tax based on its "gross operating income” (Administrative Code of City of NY § 11-1101 [5]), which includes receipts for services rendered in "operating] omnibuses” (Administrative Code § 11-1101 [7]). From this clear statutory language, the Tribunal could reasonably conclude that the affiliate’s payments to Varsity were not "gross operating income” because "[i]n supplying [the affiliate] with equipment and staff, [Varsity] was essentially doing no more than enabling another taxpayer, [the affiliate], to be in a position to vend utility services. [Varsity] was not, however, thereby providing such service itself’. We agree with the Tribunal that the authority petitioner cited in support of her determination that the reimbursements were taxable as the rendering of the service "of making the buses and personnel available” to another entity is distinguishable in that it involved a customer’s payments to cover certain costs to a bus company in providing for the customer’s transportation. We have considered petitioner’s remaining contention and find it to be without merit. Concur—Sullivan, J. P., Rosenberger, Ellerin, Asch and Nardelli, JJ.  