237 A.D. 763 | N.Y. App. Div. | 1933
Petitioner is a resident of the State of New York and the owner of real property in Cincinnati, Ohio. The State Tax Commission has determined that a rental of $2,223.72 received from the real property in 1928, and $1,584.31 profit upon the sale of a portion thereof in that year, should be included as a part of petitioner’s income for the purpose of computing her income tax in this State. The determination is reviewed by certiorari.
“An annual tax upon the annual value or annual user of real estate appears to us the same in substance as an annual tax on
A different question is presented as to the item representing a profit upon the sale of a part of the real estate located in Ohio. “ The tax upon profits made upon purchases and sales is an excise upon the result of the combination of several factors, including capital investment and, quite generally, some measure of sagacity; the gain may be regarded as ‘ the creation of capital, industry and skill.’ ” (Willcuts v. Bunn, 282 U. S. 216, 228.)
The income tax of the petitioner should be fixed by deducting from the income the sum of $2,223.72, the amount received as rentals from the real property in Ohio.
The determination of the State Tax Commission should be annulled and the proceedings remitted to it, with the direction to fix the income tax in accordance with this opinion.
All concur, except Rhodes and Bliss, JJ., who dissent and vote to confirm.
Determination annulled and matter remitted, with fifty dollars costs and disbursements, with direction to fix the income tax in accordance with the opinion.