127 Misc. 799 | N.Y. Sur. Ct. | 1925
This application is made by the State Tax Commission for a modification of the order dated June 16, 1925, assessing the transfer tax by including property passing by the exercise of two powers of appointment. Through inadvertence the item was overlooked upon the application to have the tax fixed without the appointment of an appraiser, and the question of the taxability of the transfer was not raised or litigated thereon. The motion of the Commission is proper. (Matter of Matthies, N. Y. L. J. Jan. 5, 1924; affd., 209 App. Div. 856; Matter of Scott, N. Y. L. J. Aug. 7, 1912; affd., 155 App. Div. 929; affd., 208 N. Y. 602; Matter of Scrimgeour, 175 id. 507; Matter of Willets, 119 App. Div. 119; affd., 190 N. Y. 527.)
The decedent, a non-resident, died October 19, 1922, having exercised powers of appointment conferred by the wills of her father and mother. They were also non-residents of this State and died prior to the enactment of our transfer tax statutes. The appointed property included stock in New York corporations.
The application is granted. The right to tax the transfer of shares of stock in the State of incorporation has been sustained. The situs of such stock for transfer tax purposes may likewise be declared by legislation to be in the State of incorporation. (Corry v. Baltimore, 196 U. S. 466; Matter of Bronson, 150 N. Y. 1; Matter of Enston, 113 id. 174, 181; Matter of James, 144 id. 6, 12; Gleason & Otis Inheritance Taxation [4th ed.], 557; McDougald v. Low, 164 Cal. 107; 127 Pac. 1027.) The transfer of this stock is taxable in the estate of the donee. (Matter of Palmer, N. Y. L. J. Aug. 8, 1924; affd., 214 App. Div. 705; Matter of Brett, 206 id. 746.) In Matter of Hull (111 App. Div. 322, 325) the court said: “ If the subject of the taxation, whether that be property of a tangible nature or a privilege conferred by the State, is within the jurisdiction or dominion of the Legislature, then it is for that body to determine the question of taxation.” The legislation under the statute in force at the date of death of
Order signed.