102 N.Y.S. 1062 | N.Y. App. Div. | 1907
Abram R. Strang, a resident of Westchester county, died in January, 1888, leaving a last will and testament, disposing of real estate and personal property of the aggregate value of $21,832.50." The property was disposed of in such a manner as to bring it within the terms of chapter 713 of the Laws of 1887, amending chapter 483 of the Laws of 1885, and a tax of $517.15 was levied and assessed under the provisions of section 2 of the act cited, which provides that “ the tax prescribed by this act shall be immediately due and payable to the treasurer of the proper county, * * * and, together with the interest thereon, shall be and remain a lien on said property until the same is paid.” Section 1 of the same act provides likewise that “all administrators, executors and- trustees shall be liable for any and all such taxes until the same shall have been paid as hereinafter directed,”, and section 9 of the act provides that it shall be the duty of executors, administrators or trustees of an estate within the terms of the act to report in writing to the treasurer or comptroller of the county within six.months of assuming office or within such further time as therein prescribed, so that the pro-vision for holding such administrators, executors or trustees liable for the tax is in the nature of a penalty for not discharging a duty demanded of them by the law. The beneficiaries under the will appealed from the order of the surrogate fixing the transfer tax; and upon a hearing of the appeal the learned surrogate reversed the order, and appeal comes to this court from the order of reversal.
The principal contention of the various respondents is that while the estate was originally subject to the transfer tax, this right has been lost to the State through the operation of subdivision 2 of section 382 of the Code of Civil Procedure, which fixes a limitation of six years upon an action to recover upon a liability created by statute. It may well be urged that the proceeding now before the court, which is to appraise, assess, determine and fix the amount of the transfer tax, is not an action to recover upon a liability created by statute, and that the Statute of Limitations goes merely to the
The respondents rely ver„y largely upon the case of People ex rel. New York L. & I. Co. v. Roberts (157 N. Y. 70), but the court in that case has pointed out a very significant distinction between the Corporation Tax Law and the Taxable Transfer Act. At page 75 the court say : “ The tax, which is imposed upon a corporation, is not. made a lien upon its property; but constitutes an obligation, for the ■ enforcement of which remedies are prescribed, which the Comptroller of the State may avail himself of. As an obligation, it should be regarded in the same light as are the obligations of individuals, in view of the general operation of the Statute of 'Limitations, etc. Under the Taxable Transfer Act the tax is made a lien upon the property, to remain “ until the same is paid,” and it .may be fairly questioned if a Statute of Limitations could be construed to bar an action or proceeding to foreclose a lien which, is to continue until the tax is paid.
However, if it be assumed that the statute would operate to bar any proceeding to. collect this tax, which has not been collected because of the neglect of the executors to discharge the duty imposed upon them by law, we are of opinion that the Legislature has removed, such bar. Chapter 737 of the Laws of 1899 (adding to Tax Law [Laws of 1896, chap. 908] § 282) provides that “ The provisions of the Code of - Civil Procedure, relative to the limitation of time of enforcing a civil remedy, shall not apply to any proceeding or action taken to levy, appraise, assess, determine or enforce the collection of any tax or penalty .prescribed by articles nine or ten of said chapter ” (Chap. 908 of the Laws of 1896* covering this question), “ and this act shall be construed as having been in effect as of date of the original enactment of the Corporation- and Inheritance Tax Law, provided,, however, that as to real estate in the hands of bona fide .purchasers, the transfer tax shalhbe presumed to be paid and cease to be a lien as against such purchasers after the expiration of six years from the date of accrual. This act shall not affect any action or proceeding now pending.”
It cannot be doubted that the Legislature intended to make .this
Hibsohbeeg, P. J., Gaynor, Rich and Miller, Jj., concurred;
Order of the Surrogate’s Court of Westchester county reversed, and the prior order affirmed, with costs. .