110 Misc. 2d 71 | N.Y. Sup. Ct. | 1981
OPINION OF THE COURT
In this action, plaintiff seeks a declaration that section 182 of the Tax Law is unenforceable and void from its inception. It seeks summary judgment on its first, second and third causes of action which assert that the above provision is in violation of both the commerce and supremacy clauses of the Federal Constitution, and that its enactment and implementation results in a denial of due process to plaintiff.
The challenged tax imposed a 2% gross profits tax on profits generated within the State of New York, and partially prevented the plaintiff and other oil companies from passing this additional tax on to the consumers of New York State. This “anti-pass through” provision was invalidated by the United States District Court for the
Plaintiff contends that the sole issue for this court’s determination is whether the Legislature may take and keep the proceeds from an unconstitutional tax. However, as hereinabove set forth, the Federal courts have never declared the tax unconstitutional, but rather have limited their holding to a finding that the anti-pass through provision is in violation of the supremacy clause. In an attempt to bootstrap the Federal decisions into a mandate against an unconstitutional “taxing scheme”, plaintiff asserts that the tax itself is inseparable from the pass through prohibition and, is therefore, likewise void from its inception. Plaintiff is correct in its assertion that due process will not allow a State to keep the proceeds of an illegal tax. A contrary holding would sanction other unconstitutional taxing measures by allowing the Legislature to enact unconstitutional tax statutes and then reap the proceeds therefrom until the courts could invalidate same. This would surely be an impermissible result. However, such is not the case at bar.
It is clear that a State may impose a gross receipts tax upon corporations doing business in this State, if the tax is applicable to activity having a constitutional nexus herein, is fairly apportioned, does not.discriminate against interstate commerce, and is reasonably related to the services provided by the State (Complete Auto Tr. v Brady, 430 US 274). A review of the tax in question reveals that it meets these criteria and is not unconstitutional. The plaintiff has the burden of proving that the statute is unconstitutional beyond a reasonable doubt (Lincoln Bldg. Assoc. v Barr, 1 NY2d 413), and has failed to meet this burden.
Accordingly, plaintiff’s motion for summary judgment shall be denied. Defendants’ motion for summary judgment shall be granted to the extent that it seeks a declaration that the tax imposed by chapter 271 of the Laws of 1980 is constitutional and validly enforceable from January 1, 1980 through November 10, 1980.