103 Misc. 655 | N.Y. Sur. Ct. | 1918
The order assessing a tax upon the estate of decedent contains an adjudication that certain railroad bonds owned by him at the time of his death are subject to the tax provided by section 221-b of the Tax Law, and a tax of $1,390.28 was assessed upon the appraised value of the bonds. The executor has appealed from that determination, and contends that the bonds are not subject to the tax provided by that section. He further contends that chapter 700 of the Laws of 1917, which added the new section 221-b to the Tax Law, is unconstitutional.
The decedent died on the 28th of September, 1917. At the time of his death he was a resident of the state of New York. He owned certain railroad bonds having an aggregate value of $27,805.68, and upon these bonds no tax had been paid or stamps affixed, as provided by section 331 of the Tax Law.'
That part of section 221-b which is relevant to the question under consideration reads as follows: “Additional tax on investments in certain cases. Upon every transfer of an investment, as defined in article fifteen of this chapter, taxable under this article, a tax is hereby imposed, in addition to the tax imposed by section two hundred and twenty-one-a, of five per centum of the appraised inventory value of such invest
It seems that a person owning “ investments ” may, in either of two ways, relieve his estate from the additional tax provided by this section: He may pay the twenty cents a year on each $100, as provided by section 331, or he may pay a personal property tax in the tax district where he resides. Payment in either way will relieve his estate from the additional tax provided by section 221-b; it is not necessary that his executors should show payment under section 331 as well as payment of a personal property tax. It is conceded that the decedent did not pay the tax provided by section 331, and it is also conceded that he did not pay a personal property tax on the bonds. It appears, however, that he did not become the owner of the bonds until October 16, 1916. As assessments for personal property are made in this county on October first of each year, the decedent could not have included the bonds in the personal property on which he was assessed for the year 1917. He died on September 28,1917, which was two days before the assessment for personal property was made for the year 1918. It was therefore impossible for him to have paid the tax provided by section 331, but it was not incumbent upon him to do so, as he could rely on the other alternative and pay the personal property tax. To assess an additional tax of five per cent on his
In view of the conclusion at which I have arrived, it is unnecessary for .me to consider the point raised as to the constitutionality of the statute.
The order fixing tax will be modified by striking out that part of it which imposes a tax under section 221-b.
Order modified.