200 N.Y. 328 | NY | 1911
The relator’s capital stock on November 1st, 1906, was $149,197,800. On the first of January following it was increased to $178,632,000, and remained at that sum until October 31st, 1907, the end of the tax year. Not all of the relator’s capital was engaged within this state, but there is no question as to the correctness of the apportionment made by the comptroller in'that respect. It is the increase of stock that has give rise to the dispute in this case. Two questions are presented: (1) The comptroller assessed the tax on the basis of the whole outstanding stock at the end of the tax year. The relator claims that as the increased stock was outstanding during only a part of the year, the assessment should have been made oil the average amount of stock during the year. (2) The relator paid during the year dividends at the rate of Gfo per annum on all its stock outstanding
As to the first question, this court held in People ex rel. Mutual Trust Co. v. Miller (177 N. T. 51), where the relator began business a few days before the end of the tax year, that it was only the average outstanding stock during the year which was to be taken as the basis of the tax. In that case we treated the franchise tax as an exaction for the privilege afforded to the corporation for the past year. After our decision, however, the legislature amended section 182 of the Tax Law so as to provide that the tax should be paid in advance. The amendment changed the character of the tax as to corporations embraced within that section, from a pay
On the second question we think the comptroller erred. In liis view there were two kinds of stock; the old stock on which had been paid Q°/0, and the increased stock on which
The determination of the comptroller and the order of the Appellate Division should he modified accordingly, without costs to either party. The order of this court is to be settled on notice by the chief judge, when, if the parties can agree on the amount, reduction can be made by tlie order of this court without further proceedings.
Ordered accordingly.