
    In the Matter of Fleetwood Acres, Inc., Petitioner, v. State Tax Commission, Respondent.
   This is a proceeding under article 78 of the Civil Practice Act to review a determination of the State Tax Commission sustaining an assessment of an additional franchise tax for the year ending December 31, 1952. The additional assessment is based upon a change of classification of petitioner from a real estate corporation taxable under section 182 of the Tax Law, to a corporation taxable under article 9-A. Petitioner owns three apartment buildings containing 160 apartments. Eight of the apartments were completely furnished by the petitioner and rented as furnished apartments during the year in question. There is no substantial distinction between the situation presented and the case of Matter of 6 E. 112th St. Corp. v. State Tax Comm. (8 A D 2d 542, affd. 8 N Y 2d 930). That ease is controlling here. The fact that a regulation, explanatory of its interpretation of the statute and giving an example, was not promulgated by the commission until August 18, 1953, is of no legal consequence. The commission did not, as urged by petitioner, retroactively apply the regulation. The assessment here in question was made pursuant to the statute and not the regulation, which was merely explanatory of the statute itself. Determination unanimously confirmed, with $50 costs. Present — Bergan, P. J., Coon, Gibson, Herlihy and Reynolds, JJ.  