77 N.Y.S. 401 | N.Y. App. Div. | 1902
The principal contention of the relator is that under section 182 of the Tax Law (Laws of 1896, chap. 908) in cases where dividends amounting to less than six per centum have been declared upon, the capital stock of the corporation and the cash value of the capital stock exceeds its par value, the tax should be at the rate of one and one-half mills upon the par raime of that portion of the capital stock employed within this State and not upon its cash value. We understand that the Court of Appeals in People ex rel. New York & East River F. Co. v. Roberts (168 N. Y. 14) has held against the relator’s contention. The court in that case say ■: “ The direction that the tax shall he ‘upon such.portion of the capital stock at par as the amount of capital employed within this State bears to the entire capital of the corporation,’ was not intended to establish or fix the rate at which such capital stock was to be asessed, but a rule for the computation of the amount of capital stock on which assessment was. to be made.” (See People ex rel. Union Ferry Company v. Roberts, 66 App. Div. 157.) The question. raised by the relator is not now an open one for discussion in this court.
The Comptroller fixed the amount upon which the tax should be eomputed against the relator under section 182 of the Tax Law at •$10.6,000,000, and the tax thereon at $159,000. The relator contends that even if the amount Upon which the tax should be computed is based upon the cash value of its capital stock and not its par value, the amount as fixed by the Comptroller was excessive. We are unable to ascertain just how the amount was determined by
Under the decision in People ex rel. Lackawanna, Transportation Company v. Knight (75 App. Div. 164) the rolling stock without the State and the said coal and supplies are not capital employed within this State. The Court of Appeals in People ex rel. Edison Electric Light Co. v. Campbell (138 N. Y. 543), referring to stocks owned by the relator in that case, say : “ As to so much of such stocks as was in corporations organized and existing in this State, it cannot be doubted that its capital was employed within this State.
“ The stocks which the relator took in companies organized outside óf this State stood for so much of the relator’s capital invested outside of the State. It took a portion of its capital, to wit, a portion of its patent rights, and employed it outside of the State to purchase those stocks. Its property in those corporations, represented by its shares of stock, was outside of this State, and was in no sense employed here. Those stocks had no situs here, and were not taxable here under any system of taxation which has ever existed in this State.” (See People ex rel. Edison Electric Light Co. v. Wemple, 148 N. Y. 690.) The fact that' the principal part of the stock, owned by the relator in foreign corporations has' been pledged as collateral seem rity for bonded indebtedness of the relator does not require that the stock so pledged but still retained for all practical purposes shall be omitted from the statement of, relator’s capital. The capital employed within this State, therefore, is said $205,029,380.45, to which should be added $2,311,686, making a total of $207,341,066.45, and being .61386+ per cent of the entire capital of the relator. The. average amount of the relator’s capital stock'at par during the year was $108,750,000, and the' average price 129.8125. The average cash value of the average amount of relator’s capital stock was $141,171,039.75. The amount upon which the tax should be computed against the relator, therefore, is $86,659,287.62, and the tax should have been $129,988.93.
The determination of the Comptroller should be modified by reducing the tax to $129,988.93, and as so modified confirmed, with fifty dollars costs and disbursements to the relator.
All concurred.
•Determination of the Comptroller modified by reducing .the tax to $129,988.93, and as so modified confirmed, with fifty dollars costs and disbursements to the relator.