97 N.Y.S. 47 | N.Y. App. Div. | 1905
Lead Opinion
It appears beyond dispute that outside of the small amount of money in the bank, which was offset by an indebtednesss, the entire capital and surplus of the relator consisted of real estate, and that for the purpose of reaching the sum at which the relator was taxed upon its capital and surplus this real estate was placed at a greater value than it was assessed for the pur póse of taxation as real estate. The question, therefore,'presented is whether the same réal- estate can he fixed at a greater value, depending upon whether the inquiry, by the commissioners-is to ascertain the amount for which the reía-' tor is liahle-npon its capital stock and surplus, than it was assessed at for the purpose of taxation as rfeal estate. It may be conceded that there is a difference, but the statute (Tax Law [Laws of 1896,
To hold that the commissioners, in disregard of their statutory duty, can fix a different value upon the same property for different purposes, is introducing an element of uncertainty and inconsistency upon a subject that is sufficiently' intricate-and perplexing and which, as shown in People ex rel. New York Real Estate Assn. v. Barker (29 App. Div. 329), if allowed, might, as in that case, result in double taxation.
The order should be reversed, with costs, and the writ sustained.
McLaughlin, J., concurred; Laughlin and Houghton JJ., dissented.
Dissenting Opinion
. The commissioners of taxes and assessments for the year 1903 in the first instance determined the valuation of the capital stock and surplus profits of the relator liable to taxation to be $100,000. The relator duly applied for a revision of this assessment and its application therefor was accompanied by a statement of its assets and liabilities and was later supplemented by another, copies of which are annexed to the return. The commissioners subsequently revised and reduced the assessment to $20,590. The value of the capital stock is not stated in the petition or in the writ; nor do they disclose the basis upon which a revision of the assessment was sought before the board or is claimed here. The writ itself, however, recites that the relator’s contention is that its property consists of real estate; that its only personal property was a balance of $2,388.30
During the. revision period the relator, according to; the return, claiming to be aggrieved by the assessment, made a formal application for a correction thereof and transmitted therewith a verified statement of its assets and liabilities. The statements filed in support of the. application, taken together, showed that the corporation . ivas organized in the year 1886 for the purpose of purchasing, from, the surviving "partners and the heirs and devisees "of deceased members- of the copartnership- firm of J. C. Howe & Co.., premises Hos. 57, 59-, 61 ahd 63 Worth street in the -city of Hew York and using in payment therefor the entire capital stock of -the par value of $400,000 distributed’ proportionately according to the respective interests- of the owners; that the premises were conveyed to the corporation and ,the capital stock was issued i'n payment tlierefor pursuant to said plan and that-the company still ..held and owned" the same; that* the real estate, as matter of bookkeeping and in order to make the -books balancé, is'carried" on its books as an asset worth'$400,000, but that this was not intendéd as the “ actual value ” of the'property ; that on the second Monday of January, 1903, the date on which thé taxable status of its property became' fixed, it had no other property excepting. $2,388.30 cash in bank accumulated . from rent received froin -said premises; that it owed $5,000 for money- borrowed besides bills aggregating .$1,800, incurred as run-, nin'g expenses for the preceding month ; that the assessed valuation of the real estate is $375,000.' The blank provided by. the commissioners of taxes and assessments, upon which the statement was made, required to bé stated the Rate of dividend for last year,, or last annual dividend,” and this was stated .to be five per cent. The blank also expressly provided that if the stock was worth less
The principal point made by the learned counsel for the appellant is that this was double taxation owing to the fact that in determining the value of the capital st.ock for the purpose of assessing it, the real estate of the corporation was figured in as an asset on a valuation $23,000 higher than the valuation placed upon it by the same officials and at the same time for the purpose of taxation as real estate. Manifestly this would not be double taxation. There would apparently be an inconsistency, and it is evident that one or the other valuation of the real estate must have been erroneous. In the one case the direct inquiry was the actual value of the real estate for the purpose of assessing it as such, while in the other the value of the ieal estate was only invoked incidentally as one of the asset's of the corporation.in determining the amount for which a personal property assessment should be made against the corporation by imposing the same upon its capital stock as prescribed by section 12 of the Tax Law (Laws of 1896, chap. 908). The rule of valuation of real and personal property for the purpose of taxation is the same. It would seem that the same assessing officers would realize that if the real estate, as an asset of the corporation giving value to its capital stock, was worth $400,009
The foregoing is the only material evidence introduced on the hearing. I am of opinion that it sustains the assessment. H o.t-. withstanding the affidavit of the deputy commissioner annexed to the rolls that'he" had followed the statutory rule of valuation in "fixing the taxable value of the real estate; I. think it clearly appears from his admissions adduced by the relator and from the other evidence that he did not. Therefore, the assessed valuation of the real estate presents no- embarrassment in determining the value of the capital stock. I am of opinion that the relator has failed to- show overvaluation of the capital stock.
It follows, therefore, that the order should be affirmed, with fifty dollars costs and disbursements.
Houghton, J., concurred.
Order reversed, with costs,.and writ sustained.
Concurrence Opinion
I think this order should be reversed upon the facts, as the clear preponderance of evidence is that the deputy commissioner of taxes swore to the truth when he stated that lie had assessed this property at its fair valuation.