193 F. 286 | S.D.N.Y. | 1912
(after stating the facts as above). The gestión here presented was considered, somewhat hastily, in Penn. Steel Co. v. N. Y. City Ry. (C. C.) 176 Fed. 471, 477. With the assistance of the exhaustive briefs which have been submitted, it has been given much more careful attention, but no reason is apparent for reaching a conclusion different from that already expressed. When it is conceded, as it must be under Flint v. Stone Tracy Co., 220 U. S. 107, 31 Sup. Ct. 342, 55 L. Ed. 389, that this tax is not imposed upon the property nor upon the franchises under which the railroad is operated in the different streets and avenues, most of the cases cited by the government become inapplicable. Of course, the corporation could not avoid this,tax by turning over its property and the operation of its road to some agent or trustee, who is the mere alter ego of the-corporation, but that is not this case.
Receivers are sometimes referred to as the representatives of the corporations, but that expression is not exactly accurate. In receiver-ships of this sort the corporate life still continues. The corporation, may go on electing officers and preserving its organization. Its property (including the franchises under which its road is operated) has been seized by the court and is held for the benefit of creditors or persons entitled to it. Sometimes the property thus seized is sold by order of the court; but such sale does not include the franchise of the debtor to be a corporation and to do business in a corporate capacity, with the privileges thereby secured to it, as pointed out in Flint v. Stone Tracy Co., supra, 220 U. S. 161, 31 Sup. Ct. 342, 55 L. Ed. 389.
It does not seem to me that Congress, while avoiding carefully any taxation of the property of the corporation, intended to impose a tax upon the income realized from the assets of a bankrupt corporation, whose property had been taken over by a court, through its officers to be marshaled and distributed. Certainly the language used does not indicate any such intent.
The motion is denied.