147 N.Y.S. 465 | N.Y. App. Div. | 1914
This is a proceeding by certiorari to review the determination of the State Board of Tax Commissioners in apportioning the amount of mortgage taxes to be paid on account of the recording of a certain trust mortgage on the 18th day of June, 1913, in the office of the clerk of Erie county. The relator, the Cleveland and Buffalo Transit Company, a corporation organized and doing business under the laws of the State of Ohio, made a trust mortgage to M. E. Farr, as trustee, which mortgage secured an issue of $1,000,000 of bonds, and this mortgage was offered for record on the 18th day of June, 1913, at the office of the clerk of Erie county, and upon the payment of a recording fee of $278 the same was duly recorded, and the question of the apportionment of the amount to be paid was in due course submitted to the State Board of Tax Commissioners, where the determination was made that such recording fee should have been the sum of $2,925. This proceeding is brought to review this determination. There is no dispute as to the facts. This mortgage by its terms covered real property in the State of New York of the value of $160,700; real property in the State of Ohio of the value of $114,000, and personal property in the latter State, consisting of three steamboats, of the aggregate value of $1,792,000, making a total of $2,066,700, or, as given in the statement required by section 260 of the Tax Law, the total of $2,171,400, these variations being of no material importance in determining the question of law involved. The State Board of Tax Commissioners has determined, under the provisions of section 260 of the Tax Law, that the proportion of the mortgage debt represented by the mortgage in the State of New York is the relation which the value of the real property within the State of New York bears to the value of the real property in the State of Ohio, or, in other words, that the mortgage is to be considered as based entirely upon the real property involved, excluding the personal prop
Section 260 of the Tax Law, in so far as it is relevant to the question here under consideration, provides that “When the real property covered by a mortgage is located partly within the State and partly without the State it shall be the duty of the State Board of Tax Commissioners to determine what proportion shall he taxable under this article by determining the relative value of the mortgaged property within this State as compared to the total value of the entire mortgaged property, taking into consideration in so doing the amount of all prior incumbrances upon such property or any portion thereof. * * 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, taking into consideration in so doing the amount of all prior incumbrances thereon.” (Consol. Laws, chap. 60 [Laws of 1909, chap. 62], § 260.) How this language can be tortured into an authority for excluding the value of the great steamships of the relator, with a value of nearly $2,000,000, it is difficult to understand, and this difficulty is not relieved by anything which we find in the discussion of this case.
The relator, a corporation organized and doing business under the laws of the State of Ohio, we may assume has the
Here then is to be found the meaning of the word ££ tangible ” as used in the Tax Law ; it refers to property which is in fact tangible; which may be seen, weighed, measured and estimated by the physical senses, and the effort to make it exclude personal property in determining the proportion of value to be ascribed to mortgages offered for record, where they involve real property outside of the State, is wholly without justification in reason or authority. When the Tax Law refers to tangible property it means tangible property, and excludes all franchise values and matters of that character, and it cannot be extended beyond this without doing violence to the language, and without disregarding sound principles of
The determination of the State Board of Tax Commissioners should be annulled, and the matter remitted to that board with directions to determine the amount of the tax in accord with this opinion.
All concurred.
Determination of the State Board of Tax Commissioners annulled, with fifty dollars costs and disbursements, and the matter remitted to that board with direction to determine the amount of the tax in accordance with the opinion.