¶1The result reached by the majority in this case is mandated by the prior decisions of this court and the Court of Appeals and, accordingly, I join in ¿the confirmance of the commission’s determinations.
¶2However, the facts in the present case tend to point out what would seem to be an unreasonable situation, the inequity of which might be resolved by the Legislature or by further interpretation by the Court of Appeals of the exemption involved in regard to the unincorporated business tax.
¶3The rules of the commission directly acknowledged that the occupations of musicians and artists are classified as professions for exemption. (See 20 NYCRR 203.11.) It is now established that classification as a profession has nothing to do with the lofty ideals of an advanced type of knowledge in a given field of science or learning. While advanced learning or knowledge may enhance the occupation of musician or artist, it is common knowledge that generally success in those occupations is a matter of talent and individual characteristics. (Cf. Matter of Voorhees v. Bates, 308 N. Y. 184.)
¶4In Matter of Rosenbloom v. State Tax Comm. (44 A D 2d 69, 71) this court listed four considerations as a guide to determining whether or not an occupation is a profession within the meaning of subdivision (c) of section 703 of the Tax Law. None of those factors would be inherent in supporting a determination that the occupations of musician and artist are professions.
¶5While it is undeniably established that the question of whether or not a given occupation as pursued by a taxpayer meets the exemption status of a profession is one of law for the courts (Matter of Voorhees v. Bates, supra, p. 188), the inclusion of an occupation as exempt within the rules of the commission necessarily requires a valid distinction to deny the exemption to a taxpayer falling within the occupation. It is not contended fhat the petitioners herein are not artists.
¶6The rules of the commission not only include the occupation of artist) they go on to deny the exemption where the talent is utilized for the conduct of business itself (20 NYCRR 203.11 *555[b]). In Matter of White v. Murphy (11 A D 2d 854, affd. without opn. 9 NY 2d 995) this court affirmed a denial of exemption to an artist where his talent was used to create advertisements (pictorial) for a magazine. The present case falls within the general principle of White as the artist is engaged in selling his services or product to further the business enterprise of selling magazines. However, it cannot be overlooked that lawyers are often retained to draft contracts for businesses and to consult as to management policies in the area of labor relations and discrimination. It is doubtful that any profession does not have the capacity to be utilized solely for the commercial purposes of the client for whom services are rendered.
¶7It seems apparent that to some degree there is discrimination inherent in a rule which eliminates a taxpayer from the exemption as a profession because his service is used by his client for ordinary business and commercial purposes. The petitioner, Peterson, in his testimony, stated that there are two types of photography:
“ For instance, in advertising work, the photographer is given a layout which is a rough drawing of exactly what the advertiser wishes him to translate into photographs. He is given complete direction, he is under total control of the advertiser or his agent.
“ When a photographer does editorial work, he is a free agent to artistically interpret at his will the general theme which is given to him by the magazine. ’ ’
¶8Nevertheless, the prior determinations of this court and the Court of Appeals as to exemption from the unincorporated business tax based upon classification of an occupation as a profession mandate my concurrence in the confirmance of the commission’s determinations herein.
¶9I am of the opinion, however, that with the changing times and conditions and the enlargement of the statute by the rules and regulations of the tax commission {supra) serious consideration should be given to the over-all problem as it now exists.
¶10Staley, Jr., Kane and Reynolds, JJ., concur with Sweeney, J.; Hbrlihy, P. J., concurs in a separate opinion in which Staley, Jr., Sweeney, Kane and Reynolds, JJ., concur.
¶11Determinations confirmed, and petitions dismissed, without costs.