Proceeding under article 78 of the Civil Practice Act to review a determination of the State Tax Commission which sustained assessments of unincorporated business taxes under article 16-A of the Tax Law, as against petitioner’s contention that his work as a commercial artist constituted the practice of an exempt profession under the provisions of section 386 of the Tax Law which exclude from the application of the taxing statute the practice of certain named professions “ and any other case in which more than eighty per centum of the gross income is derived from the personal services actually rendered * * * in the practice of any other profession and in which capital is not a material income producing factor.” It is not disputed that more than 80% of petitioner’s gross income was derived from his personal services and that capital was not a material income producing factor. Consequently, the sole issue is whether petitioner was engaged “in the practice of any * ■* * profession ”. Petitioner used the terms “ commercial artist” and “commercial illustrator” interchangeably in describing his occupation. He operated as a “free lance”, being paid for each advertisement that he was commissioned to and did illustrate. As demonstrative of his work he offered in evidence a department store advertisement of a bedspread which
