160 N.Y.S. 854 | N.Y. App. Div. | 1916
These are proceedings by certiorari to review two determinations of the State Tax Commission, apportioning the amounts of the taxes for recording two mortgages given by the relator oil corporation to the relator trust company, as trustee, in March and July, 1913; and involve the construction of sections 255 and 260 of the Tax Law (Consol. Laws, chap. 60; Laws of 1909, chap. 62). There is practically no dispute as to the facts. Each mortgage was given to secure the payment of bonds of the oil corporation, to the amount of $1,500,000, and covered all the tangible real and personal property then owned by the corporation. Both relators were New York State corporations. The oil corporation owned both real and personal property in the five States of New York, Maine, Massachusetts, Rhode Island and Tennessee, of the aggregate value, exclusive of prior incumbrances, of upwards of $5,000,000. It was engaged from July first to November first, as one branch of its busi
Section 260 of the Tax Law, under which such determination was made, provided in part: “In determining the separate-values of the property covered by any such mortgage ’within and without the State, for the purpose of ascertaining the proportion of the principal indebtedness secured by the mortgage which is taxable under' this article, the State Board of Tax Commissioners shall consider only the value of the tangible property covered by each mortgage * *
Unquestionably the vessels were “ tangible property.” Tan
The relators in support of their contention that the vessels were tangible property without the State introduced evidence to the" effect that very little of the fishing in which the vessels were engaged was done within the three-mile limit, and that ninety per cent of it was done off the coasts of States other than New York; that none of the vessels were actually within the State of New York at the time the March mortgage was executed; that although fish were unloaded at Promised Land, they were also unloaded in the States of Massachusetts, Delaware and North Carolina; that twelve of these vessels were engaged exclusively in fishing outside of the State of New York, and that all the vessels wintered at Portsmouth, E. I. However, it appears that the principal office and place of business of the relator oil corporation was at Promised Land, in the county of Suffolk, N. Y.; that at the dates and also at the times of recording these mortgages, all the vessels were enrolled and licensed under the laws of the United States to carry on the fisheries, and that each of the certificates of enrollment was issued and recorded at the port of Gfreenport, district of Sag Harbor, Suffolk county, N. Y., which was designated in each certificate as the “ Home port.”
While perhaps not conclusive upon the question at issue, the situs of the vessels at the time of recording the mortgages has an important bearing upon whether the vessels should have been held to be property within or without the State. We may also properly look for guidance to decisions of the courts taxing vessels as property.
The legal situs of seagoing vessels for the purpose of taxation is the port where they are registered under the laws of
Where a vessel was registered in a State and the corporation owning it had its business office in that State, a vessel, although plying to a point in another State, is properly taxed in the State of its registration. (Irvin v. New Orleans, St. L. & C. R. Co., 94 Ill. 105.)
Ferry boats plying between Jersey City and New York and enrolled in the-custom house in the latter cityand owned there are not taxable in the former city, not being situated there within the meaning of the statute. (State v. Haight, 30 N. J. Law [1 Vroom], 428.)
The home port of a vessel engaged in interstate commerce is its situs for taxation. (Ayer & Lord Co. v. Kentucky, 202 U. S. 409.)
Vessels engaged in foreign or interstate commerce, owned by a corporation of the State, which are registered under the laws of the United States and have the name of their home port in such State painted on their stern, have their situs for the purpose of taxation at such home port. (Yost v. Lake Erie Transp. Co., 112 Fed. Rep. 746.)
Suffolk county, N. Y., was not only the domicile of the owner, and the place of enrollment of the vessels, but the custom house at Gfreenport was the place where a mortgage upon these vessels was required to be recorded. (U. S. R. S. § 4192.) The registry of the vessels was required to be near the home of the owner. (Id. § 4141.) The evidence does not show that prior to the time of recording these mortgages the vessels had acquired an actual situs in any other State. The taxable situs of a vessel which has no permanent location within another jurisdiction is the domicile of the owner. (Southern Pacific Co. v. Kentucky, 222 U. S. 63.) The domicile of the owner, as well as the port of enrollment of the vessels, having been at a place within the State of New York, such was the situs of the vessels, and they must be held to have been tangible property within the State within the intent and meaning of
Not only have all the mortgage taxes which accrued upon the March mortgage not been paid, but at the time the July mortgage was presented for recording no statement was filed of the facts on which the claim of the relators for exemption of the July mortgage was based, nor even a claim made of the right of exemption, all of which were required by the statute in order to make the claim of right of exemption available. Nevertheless, the relators claimed before the State Tax Commission and now urge before us that the July mortgage
“ Supplemental ” is defined in Bouvier’s Law Dictionary [Rawle’s Rev.], “ That which is added to a thing to complete it. ” By Webster’s New International Dictionary, “supplement ” is defined “ To fill up or supply by additions; to add something to; to fill the deficiencies of;” and “supplemental,” as “serving to supply what is lacking; supplementary.” As was said in Hygienic Ice & Refrigerating Co. v. Franey (142 App. Div. 143, 147): “A supplemental mortgage contemplates something to which it is supplemental; it is not the primary and only mortgage. In this case the first mortgage was discharged, and the mortgage in question was intended as a first mortgage to take the place of the other one which was to be discharged. The statute does not contemplate that if a man pays one mortgage with money borrowed upon another mortgage, the latter mortgage is exempt from taxation. Both are original mortgages, and the exemption provided for a supplemental mortgage has no application.”
In the case at bar the July mortgage was a substituted or superseding mortgage rather than a supplemental mortgage. It was executed for the purpose of refunding and discharging the March mortgage. It was no less a refunding mortgage because executed before the March mortgage became due. By the terms of the section a supplemental instrument or mortgage in order to be exempt from taxation must be recorded for the purpose of correcting or perfecting a recorded mortgage, or pursuant to some provision thereof. The relators concede that the March mortgage was in no respect incorrect or imperfect. The evidence shows that the July mortgage .was executed because the bonds secured by the March mortgage could not be disposed of for the reason that portions of the real and personal property covered by.the mortgage were subject to a prior lien of $62,000. Portions or all of this incumbered property situated in the States of Tennessee and New' York, and perhaps in Delaware also, were turned over to creditors of the oil corporation, and the July mortgage given upon such portions of the property covered by the March mortgage as were free from that lien. The bonds secured by
The decision of the State Tax Commission should be affirmed, with fifty dollars costs and disbursements.
Determination unanimously confirmed, with fifty dollars costs and disbursements.