175 Misc. 306 | N.Y. Sup. Ct. | 1940
By Local Law No. 20 (published as No. 21) of the New York City Local Laws of 1934 a utility tax was imposed upon the gross income of any person who shall engage in the business of furnishing or selling electric service whether or not such person is subject to supervision by the department of public service. Under that and similar laws enacted in subsequent years (Local Laws of New York City, No. 2 of 1935; No. 30 of 1936; No. 23 of 1937, No. 22 of 1938; No. 104 of 1939) plaintiff and its assignor each
Plaintiff’s present conception as to the non-liability of its assignor and itself is, I hold, correct. (Matter of 320 West 37th St., Inc., v. McGoldrick, supra.) That, however, merely shows that they paid the taxes under a mistake of law. They clearly knew the facts. No one knew the nature of their own business better than they did. They paid simply because they misconstrued the statute. They consequently cannot recover if they paid voluntarily. (Adrico Realty Corp. v. City of New York, 250 N. Y. 29, 32; M & T Trust Co. v. City of Buffalo, 266 id. 319, 323.)
Where an unambiguous statute itself specifies and identifies the taxable transaction or object (as distinguished from merely describing a class of transactions or objects), and also where the taxing officers make an assessment or otherwise officially indicate their intent to impose the tax upon a particular transaction or object, payment of the tax in order to avoid penalties or free property from a lien is not a voluntary payment even though not accompanied by words of protest. (People ex rel. American Exchange National Bank v. Purdy, 196 N. Y. 270, 277; Ætna Ins. Co. v. Mayor, 153 id. 331, 340.) If, therefore, the taxing officials had said to plaintiff and its assignor in words or substance that they were subject to the tax and
I conclude, therefore, that the payments here were voluntary, and it thus is not necessary to consider whether or not or to what extent plaintiff may be barred by failure to resort to statutory remedies.
Plaintiff’s motion for summary judgment is denied and the cross-motion to dismiss the complaint for failure to state facts sufficient to constitute a cause of action is granted.