82 A.D. 112 | N.Y. App. Div. | 1903
On the 30th of January, 1903, James J. McEvilly, as attorney for the Comptroller of the State of FTew York, presented his affidavit to one of the surrogates of the county of Mew York, in which affidavit it was stated that by an order entered in this proceeding on February 7,1901, Robert Mazet, Esq., was appointed appraiser to fix the fair market value of the property which.belonged to the late David Wolfe Bishop in his lifetime, and which was the subject of
If we take the affidavit of Mr. McEvilly as indicating the actual status of the matter, then we find that his representation upon which the surrogate’s action is based is that the appraiser was appointed for the purpose of fixing the fair market value, of the property which belonged to the late David Wolfe Bishop in his lifetime, and which was subject to the payment of a transfer tax. That is a proper statement of what the proceeding is, and it necessarily results from it that before a determination can be made as to whether the property is subject to taxation under the Transfer Tax Law of this State, it must be determined whether the late David Wolfe Bishop was a resident or a non-resident. As to residents, the transfer tax is on the succession and is imposed on the right of succession ; but as to non-residents it is a tax on the transfer of property within the jurisdiction of the court. If the decedent were a nonresident, then those stocks in foreign corporations are not taxable here. (Matter of James, 144 N. Y. 6.) If David Wolfe Bishop were a non-resident and these foreign stocks consequently are not taxable here, there is no reason why the executor of the will should be put to the annoyance and expense of preparing inventories and exhibiting the condition of an estate as to items not taxable in the State of Hew York. Under the Transfer Tax Law, the executor is bound to pay a tax properly imposed. The first thing required is
The consideration of this question is not aided by any authority directly in point, but 1 know of no better way of summing, up the views I have upon the subject than by referring to those.expressed by Andrews, J., in Matter of Enston (113 N. Y. 177). That learned judge says, with respect to the Collateral Inheritance Tax Law of 1885, what is still true of the Transfer Tax .Law, that it is a special tax. It is not a law which is- to be construed with reference to the general purposes of. taxation where every citizen should supply his personal contribution- to the support-of the government which protects him. It is a peculiarly special law of taxation; it was unknown to .the law of this State until about twenty years ago.. To •use the language of Judge Andrews in the case cited : “ The tax imposed by this act is not a common burden upon all the property or upon the People within the State. It is not a. general, but a special tax, reaching only to special cases and affecting only a special class of persons. The executors in this case do not, therefore, in any proper -sense, claim exemption from, a general tax or a common burden. ‘Their claim is that there is no law which imposes such a tax upon the property in their hands as executors. If they were' seeking to ■'escape from general taxation or to be exempted from a common burden imposed upon the People of the State generally, then the authorities-cited by the learned counsel for the People, to the effect " that an exemption thus claimed must be clearly made out, would be • applicable. But the executors come into court .claiming that, the ' special taxation provided for in the law of 1885 is not applicable to them, or the property which they represent. In such a case they have the right both in reason and in justice,, to claim that they shall ■ be clearly brought within the terms of the law before they shall be • subjected to its burdens. It is a well-established rule that a citizen " cannot be subjected to special burdens without the clear warrant of ' the law.” (Citing cases.)
’ The situation 'of this executor is stated in the quotation above
I think the decision of the surrogate was wrong, confining it to the one point raised on this appeal, and that the order, so far as appealed from, should be reversed, with costs to the appellant, and that the executor should not be compelled to answer with reference to stocks in the foreign corporations until the question has- been determined by the surrogate as to the' residence of David Wolfe Bishop.
Van Brunt, P. J., Ingraham and' Hatch, JJ., concurred; O’Brien, J., dissented.
Order reversed, with costs to appellant.