IN RE: the Claim of Richard R. CASSARO

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Supreme Court, Appellate Division, Third Department, New York.

IN RE: the Claim of Richard R. CASSARO, Appellant. Commissioner of Labor, Respondent.

Decided: September 23, 2004

Before:  CREW III, J.P., PETERS, CARPINELLO, MUGGLIN and LAHTINEN, JJ. Richard R. Cassaro, New Rochelle, appellant pro se. Eliot Spitzer, Attorney General, New York City (Mary Hughes of counsel), for respondent.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed December 19, 2003, which ruled that claimant was ineligible to receive unemployment insurance benefits because he was not totally unemployed.

Substantial evidence supports the decision of the Unemployment Insurance Appeal Board ruling that claimant was ineligible to receive unemployment insurance benefits because he was not totally unemployed.   The record establishes that claimant was president and 50% shareholder of a publishing company, which he incorporated for the purpose of printing in book form a set of his school writings.   After having 3,000 copies of the book printed, the corporation advertised the books, which were priced at $24, through some press releases and small newsletters.   The corporation also maintained a checking account and post office box.   Although the business was not profitable and showed a loss of $1,972.76, the tax return for the corporation indicated a small amount of gross sales and set the value of the business assets and copyright in excess of $53,000.

Notwithstanding claimant's assertion that he was not seeking any financial profit from the existence of the business, he nonetheless is entitled to deduct a portion of any corporate business loss from his personal income taxes.   These tax benefits provide substantial evidence to support the decision of the Unemployment Insurance Appeal Board finding that claimant stood to gain financially from the continued existence of the business (see Matter of Dolcater [Commissioner of Labor], 307 A.D.2d 583, 584, 762 N.Y.S.2d 312 [2003];  Matter of Sichel [Commissioner of Labor], 301 A.D.2d 771, 772, 753 N.Y.S.2d 246 [2003] ).   Furthermore, it was within the province of the Board to reject claimant's assertion that the business endeavor was a hobby, particularly given the value placed on the business assets (see Matter of Schenker [Commissioner of Labor], 284 A.D.2d 765, 727 N.Y.S.2d 185 [2001] ).   Accordingly, the decision will not be disturbed.

ORDERED that the decision is affirmed, without costs.

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