133 Misc. 768 | N.Y. Sur. Ct. | 1929
The executors take this appeal from the report of the transfer tax appraiser and the order entered thereon upon the following grounds: (1) That the tax imposed upon the transfer to the Actors’ Fund of America is illegal for the reason that the bequest to that organization is exempt from taxation under the provisions of the Tax Law; (2), (3) and (4) that the tax imposed upon each of the respective transfers to The Players, The Lambs and the Actors Equity Association is likewise illegal for the same reason; (5) that the tax assessed against the trustees for the benefit of Airs. E. AI. Beckley is illegal for the reason that this decedent died in October, 1928, and will receive no benefit from this estate; (6) that the tax assessed against the trustees, on a transfer for the benefit of a theatre, is illegal for the reason that this bequest is exempt from taxation under the Tax Law, the bequest having been made for a charitable, benevolent and educational purpose.
The decedent died on November 8, 1926. By his will he made bequests, among others, to the Actors’ Fund of America, The Players, The Lambs and The Shakespeare Memorial Theatre (named in the will as the National Atemorial Theatre). It is unnecessary to consider the bequests set forth in the fourth and fifth grounds of this appeal as these grounds of appeal are withdrawn by the executors. It is the claim of the executors that the bequests to the other organizations named are exempt from transfer tax under section 221 of the Tax Law (as amd. by Laws of 1928,
The objection by the State Tax Commission to the reception on this appeal of the affidavit of William M. K. Olcott, one of the executors, is overruled. The affidavit is made by one with a knowledge of the facts and states the purposes of these corporations as set forth in their charters or in the acts incorporating them. In it no attempt is made to show that any of the corporations in question has exercised powers outside of those specifically granted to it. The statement of the executor that no part of the net earnings of any of the corporations inure to the benefit of any stockholder, member or individual, and that no officer, member or employee thereof receives any pecuniary profit from its operations, except reasonable compensation for services, is uncontradicted.
The first ground of appeal is sustained. The Actors’ Fund of America was organized by a special act of the State Legislature (Laws of 1882, chap. 327, as amd. by Laws of 1893, chap. 275) “ to advance, promote, foster and benefit the condition and welfare of the members of said corporation (and of other persons belonging to the theatrical profession and their families), and the destitute sick belonging to the theatrical profession in the United States of America, in such way and manner and at such times as may be provided in the by-laws and regulations of said corporation.” The corporation actually maintains a home for aged and indigent members of the theatrical profession and it is for the benefit of the inmates of this home that the bequest to this organization was made by the decedent. A corporation of this kind, the purposes of which are exclusively to benefit the condition and welfare of persons of the theatrical profession and their families, which maintains a home for their care and no officer, member or employee of which is entitled to receive any pecuniary profit from its operations, except reasonable compensation for services, is clearly a benevolent and, to my mind, a charitable corporation and the bequest to it is exempt from transfer tax. (Matter of Hiteman, 110 Misc. 617; Matter of Altman, 87 id. 255; Matter of Allen, 76 id. 88.)
The second and third grounds of appeal are denied. The purposes of The Players, a membership corporation, are stated to be
The fourth ground of appeal is sustained. The Shakespeare Memorial Theatre exists under royal charter from King George V of the British Empire for the purpose of “ keeping alive the memory of Shakespeare by the production and presentation of his plays ” and “ to assist and relieve poor and necessitous members of the theatrical profession * * Its charter provides that the income and property of the corporation shall be applied solely toward to the promotion of the objects of the corporation. The affidavit of the executors states that the theatre is in no sense maintained for the purpose of obtaining profits and that the net income from all sources is used solely for the purposes mentioned. This proof is uncontradicted. From the purposes of this corporation, as expressly provided in its charter, it is obvious that the corporation is a charitable and benevolent one and the transfer to it should be exempt from tax.
The application of the executors for an allowance of an additional deduction of the amount paid for the purpose of a burial plot and the erection of a monument cannot be considered on this appeal. (Tax Law, § 232, as amd. by Laws of 1921, chap. 476; Matter of Fletcher, 219 App. Div. 5, 16; Matter of Harkness, 134 Misc. 203; affd., 223 App. Div. 880.) The executors may apply for this relief by motion for a modification of the taxing order.
Submit order, on notice, modifying the taxing order in accordance with this opinion.