209 A.D. 240 | N.Y. App. Div. | 1924
Proceedings having been begun by the executors of the above-named decedent, who died December 1, 1918, for the determination of the transfer tax payable on his estate, a report of the transfer tax appraiser was filed on the 13th of May, 1920. The usual pro forma order was made on the 27th of May, 1920, which fixed the transfer tax payable by the estate at $464,740.69, and in addition to this normal tax there was imposed by the order an additional tax under section 221-b of the Tax Law (as added by Laws of 1917, chap. 700)
Appeals were taken to the surrogate from this formal order by both parties. The State Comptroller appealed upon the ground that the will violated section 17 of the Decedent Estate Law,
The surrogate on the 3d of March, 1922, made an order upon these appeals in which he determined that certain items taxed as investments under section 221-b of the Tax Law were not such as to come within the meaning of the law and were improperly so taxed. Besides, he determined by precise adjudication that other items which were taxed under section 221-b of the Tax Law were exempt “ to the extent that said investments are deemed to be transferred proportionately to the exempt charitable legatees, that is to say, in the same proportion as the total of the legacies to the exempt charitable legatees bears to the total transfers to all the other distributees.” There was no appeal from this determination of the surrogate exempting from the transfer tax the charitable legacies in the proportion of the investments deemed to be transferred to such charitable legatees.
The State Comptroller appealed to the surrogate from the determination that the transfer of more than one-half of the estate to charitable institutions did not make the excess taxable, which
On appeal to the Appellate Division to test the determination of the surrogate that there was a violation of section 17 of the Decedent Estate Law, the order of the surrogate was reversed (203 App. Div. 638) in so far as it held that there was a violation of section 17 of the Decedent Estate Law, and it was then, in effect, determined that there need not be a reappraisal to determine the tax for that reason, and the order on remittitur from the Appellate Division reinstated the original order fixing the tax, except as modified by the order of the Surrogate’s Court, dated the 3d day of March, 1922, in respect to the additional transfer tax under section 221-b of the Tax Law.
On the appeal to the Court of Appeals by the State Tax Commission, which in the meantime had succeeded the State Comptroller in charge of the administration of the Transfer Tax Law,
The executors countermoved before the surrogate for an order modifying the original order fixing the tax, so as to conform to the order and the determination made by the surrogate upon the appeal to him from the formal order as to the additional tax under section 221-b of the Tax Law. The amounb of this additional tax was requested to be computed and fixed according to the determination of the surrogate made upon the original appeal. The motion of the executors was denied and the motion of the State Tax Commission to substitute the name of an appraiser was granted. Orders were accordingly entered and it is these orders which are here under review. There was nothing required to be done to set forth the correct amount of the tax in the proposed order by the executors under section 221-b of the Tax Law, except -to compute the amount in accordance with the determinations upon the appeal to the surrogate.
Neither in the brief nor on the argument was there any necessity suggested for an appraisal with respect to the computation of the tax due under section 221-b of the Tax Law, as such tax was assessed by the directions of the order of March 3, 1922.
The learned surrogate recognized in his opinion (N. Y. L. J. Oct. 30, 1923, p. 365) that ordinarily the computation and fixing of the tax according to the result of the appeals is made by him without the intervention of a reappraisal, but it seemed to him that it was proper to keep open the pending matter for a new determination to be based on two latter day decisions in the Court of Appeals (Matter of LeFevre, 233 N. Y, 138, 143; Matter of Burnham, 236 id. 608) which laid down a different rule from that followed by the surrogate in this case fixing the. tax under section 221-b of the Tax Law.
It is obvious that no further determination can be made upon this subject-matter other than that contained in the order fixing the tax of March 3, 1922, from which no appeal was taken. The determination as to the assessability of the securities involved therein became res adjudícala.
Accordingly, we think the surrogate erred in referring this matter to the appraiser for further proceedings and in refusing to grant the executor’s motion for an order fixing the tax under section 221-b
Other cases holding that transfer tax orders of the surrogate are res adjudicóla and binding on all parties unless appealed from are as follows: Matter of Rice (56 App. Div. 253); Matter of Lowry (89 id. 226); Matter of Barnum (129 id. 418).
In Matter of Davis (149 N. Y. 539) the court in discussing transfer tax appeals said (p. 547): “ The respondent’s appeal to the surrogate was only from that portion of the decree which directed the county treasurer to add interest at the rate of ten per cent from January 16, 1887. She did not appeal from the appraisal or valuation of the estate, or from the assessment of the tax. Upon that appeal the learned surrogate was not authorized to reverse the entire decree, to make a new appraisal or valuation of the estate, or to interfere with any portion of it except that appealed from, as it is a well settled rule that only the parts of a judgment or decree which are appealed from can be reviewed. (Sands v. Codwise, 4 Johns. 536; Kelsey v. Western, 2 N. Y. 500; Robertson v. Bullions, 11 N. Y. 243; Murphy v. Spaulding, 46 N. Y. 556.) * * *.
“ Where a statute requires the grounds of the appeal to be stated, none except those specified can be considered. The hearing must be limited to the errors noticed in the appeal. Otherwise the require
Even if the tax could be assessed in a new proceeding, it would be required to be repaid under the terms of chapter 765 of the Laws of 1920 (amdg. Tax Law, § 221), and hence the new proceeding would be without avail if it could be opened. The statute reads: “ In all estates where an additional tax under section two hundred and twenty-one-b has been heretofore imposed on a bequest to a person who is a bishop or on a bequest heretofore made to one or more of the wholly exempt corporations above named, the executors or trustees of the estate may apply to the surrogate of the proper county to have the taxing order amended by exempting such transfers from the additional tax under section two hundred and twenty-one-b and the State Comptroller
The orders should, therefore, be reversed, with ten dollars costs and disbursements, and the suriogate directed to make an order modifying the original order so as to fix the tax in accordance with the provisions of the order of March 3, 1922.
Clarke, P. J., Smith and Martin, JJ., concur; Dowling, J., dissents.
. Orders reversed, with ten dollars costs and disbursements, and proceeding remitted to the Surrogate’s Court for further action in accordance with opinion._
Since repealed by Laws of 1920, chap. 644, in effect May 10, 1920, and made applicable to the estate of every decedent who died subsequent to July 31, 1919.— [Rep.
Since amd. by Laws of 1923, chap. 301, in effect September 1, 1923.— [Rep.
See Tax Law, § 179, added by Laws of 1921, chap. 90, as amd. by Laws of 1921, chap. 443; Laws of 1921, chap. 90, § 11.— [Rep.
Now State Tax Commission. (See Tax Law, § 179, added by Laws of 1921, chap. 90, as amd. by Laws of 1921. chap. 443: Laws of 1921, chap. 90, § 11.)— [Rep.