Opinion
February 3, 1994
Appeal from the Supreme Court, New York County, Martin Evans, J.
The issue presented is whether petitioner corporation maintained a bona fide office or regular place of business at the New Jersey residence of its principal for purposes of allocating a portion of its income thereto pursuant to section 11-604 of the Administrative Code of the City of New York. Pursuant to subdivision (3) (a) (4) of that section "if the taxpayer does not have a regular place of business outside the city other than a statutory office, the business allocation percentage shall be one hundred per centum." The corresponding regulation (19 RCNY 11-63 [b] [2]) defines a regular place of business as "any bona fide office (other than a statutory office) * * * or other space which is regularly used by the taxpayer in carrying on its business."
In the evidentiary hearing held, it was petitioner's burden to prove the deficiency assessment improper (Matter of Levin v Gallman, 42 N.Y.2d 32, 34). In this case, petitioner failed to present any evidence of the type generally accepted as proof that a corporation, vis-a-vis its principal, maintains a bona fide out of State office or regular place of business (see, e.g. Matter of Adirondack Steel Casting Co. v. State Tax Commn., 107 A.D.2d 924, 925, citing Matter of UGP Props. v. State Tax Commn., 64 A.D.2d 316, 319; see also, Matter of Psychological Corp. v. Tax Commn., 99 A.D.2d 905, 906), and the conspicuous absence of such evidence provides a sufficient factual basis to uphold the determination of the taxing authority (see, Matter of Levin v Gallman, supra; Matter of Del-Met Corp. v. State Tax Commn., 102 A.D.2d 312, 316).
Concur — Carro, J.P., Ellerin, Rubin, Nardelli and Tom, JJ.