
    In the Matter of M. Danon et al., Petitioners, v Department of Finance of the City of New York, Respondent.
   Determination of respondent, dated February 24, 1983, which assessed the petitioners with a tax deficiency under the City of New York’s Unincorporated Business Income Tax Law (Administrative Code of City of New York, ch 46, tit S) for the period from May 8, 1971 to December 31, 1972, in the amount of $87,674.68, including interest, is unanimously annulled, on the law, and the petition is granted to the extent of remanding the proceeding to the respondent for a reaudit, without costs.

This CPLR article 78 proceeding was transferred to this court by order of the Supreme Court, New York County (Martin Evans, J.), entered August 15, 1983.

On May 8, 1971, in Manhattan, the petitioners began doing business as a medical clinic to perform abortions. In 1977, the respondent audited petitioners concerning their compliance with the City of New York’s unincorporated business income tax (UBIT). As a result of that audit, inter alia, petitioners were assessed a tax deficiency for the period May 8, 1971 through December 31, 1972. Subsequently, petitioners timely submitted a petition for redetermination of the tax. After a hearing, the respondent issued a final determination, which assessed a tax deficiency against petitioners in the total amount of $87,674.68. By the instant article 78 proceeding, the petitioners challenge that determination. Commendably, the respondent concedes, in its memorandum to this court, that it erred in basing its estimate of the UBIT deficiency solely upon the information contained in the petitioners’ 1973 United States partnership tax return and ignored the other evidence presented at the hearing. We agree and remand this proceeding to respondent for a reaudit.

The other contentions made by petitioners-appellants have been considered by us and we find them to have no merit. Concur — Kupferman, J. P., Sullivan, Ross, Carro and Alexander, JJ.  