128 Misc. 159 | N.Y. Sur. Ct. | 1926
The decedent died February 12, 1920. Within eighteen months of his death the executors paid to the State Tax Commission the sum of $280,000 in cash. In the taxing order the amount assessed on transfers of vested interests is $187,529.27, and on contingent remainder $219,063.51, a total tax of $406,592.78. The executors state that they now desire to deposit certain securities to make up the balance remaining due on the tax. The executors have tendered securities only of such value as will include the face amount of the tax upon the contingent remainder. The State Tax Commission refuses to accept these securities unless they include the penalty or interest on the tax on the contingent remainder from a date eighteen months after the decedent’s death.
The application to remit all interest or penalty is denied. In view, however, of the circumstances disclosed in the moving papers which show that the delay in the payment of the tax was unavoidable, the application to remit the penalty to six per cent is granted.
(1) The court is asked on this motion to declare that no interest whatever accrues on the tax assessed on the contingent remainder. The important preliminary question arises as to the power of the surrogate upon a motion of this kind to remit the entire penalty or interest on any part of the tax fixed in the order. Section 223 of the Tax Law
(2) Assuming, however, that the executors are before the proper tribunal, the application cannot be granted. No distinction is made in the Tax Law between the tax imposed on vested and contingent remainders. The purpose of the Legislature in requiring the present taxation of contingent remainders at the highest rate was to insure the prompt payment into the State Treasury of the amount of the tax. (Matter of Cole, 235 N. Y. 48; Matter of Parker, 226 id. 260; Matter of Zborowski, 213 id. 109.) In Matter of Zborowski (supra, 116) Judge Miller writing the opinion says: “ In one aspect it may be unjust to the life teiiant to tax at once the transfer, both of the life estate and of the remainder though contingent, and it may seem unwise for the State to collect taxes which it may have to refund with interest, but those considerations are solely for the Legislature, who are to judge whether they are more than offset by the greater certainty which the State thus has of receiving the tax ultimately its due under the statute. However unwise or unjust it may seem in a particular case like this for the State to collect the tax at the highest rate when in all probability the remainder will vest in a class taxable at the lowest rate, it is the duty of this court to give effect to the statute as it is written.” This legislation would fail of its object if the prompt payment of
In passing it should be noticed that the Legislature was justified in imposing a penalty to secure the speedy payment of the tax. With the amount of the penalty the courts have no concern. That was a question for the Legislature.' The primary consideration was the greater protection and security to the State Treasury in the ultimate collection of its taxes. If the delay in payment in the present case for almost six years may be justified, the courts may be asked similarly to remit the penalty where the delay was twenty years. Indeed under the applicant’s theory, the time of payment might well be postponed until the.ultimate vesting of the trust remainder. Counsel for the executors relies to a great extent in his brief upon the amendments to sections 230
The application, therefore, to remit the entire penalty or interest on the tax on the contingent remainder is denied. Submit order on notice remitting the penalty to six per cent provided that payment be made within ten days from the entry of the order.
Amd. by Laws of 1917, chap. 128; since amd. by Laws of 1921, chap. 476. — - [Rep.
Amd. by Laws of 1916, chap. 550; since amd. by Laws of 1921, chap. 476; Laws of 1924, chap. 657, and Laws of 1925, chap. 144.— [Rep.
Since amd. by Laws of 1921, chap. 476, and Laws of 1925, chap. 144.— [Rep.