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 on the average amount of stock during the year. (2) The relator paid during the year dividends at the rate of 6% per annum on all its stock outstanding *330
at the time of the dividends, but as the dividends were declared quarterly, necessarily those paid on the new stock aggregated less than 6%. The comptroller held that 6% not having been paid on the new issues, the tax should be computed under section
As to the first question, this court held in People ex rel.Mutual Trust Co. v. Miller (
On the second question we think the comptroller erred. In his view there were two kinds of stock; the old stock on which had been paid 6%, and the increased stock on which *332 has been paid less than 6%, and the distinction between the two is sought to be justified by the provisions of the Tax Law. The law substantially directs that if a corporation has more than one kind of stock and on the different kinds of stocks the dividends vary, the tax should be computed for each kind of stock separately. This provision evidently contemplates the ordinary case of preferred and common stock. It has no application to a condition such as is presented here. The relator has only one kind of stock. It is all common stock, and the relator has paid at the rate of 6% on the whole of its stock that has been any time outstanding. The tax, therefore, should have been assessed on the theory that the whole of the relator's stock was 6% stock.
The determination of the comptroller and the order of the Appellate Division should be 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 the order of this court without further proceedings.
GRAY, HAIGHT, VANN, WERNER, WILLARD BARTLETT and CHASE, JJ., concur.
Ordered accordingly.