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a new collector is not duly appointed, that the sheriff shall execute the collector's warrant, with like power, duties and obligations.
Where the supervisors do not deliver the tax rolls with the warrant to the sheriff in a case under section 87, Tax Law, mandamus appears to be the proper remedy. People ex rel. Supervisors v. Hardenburgh, 90 N. Y. 411 (1882).
Receipt for taxes.—Every collector of taxes shall deliver a receipt wholly written with ink or partly printed and filled out with ink to each person paying a tax, specifying the date of such payment, the name of such person, the description of the property as shown on the assessment-roll, the name of the person to whom the same is assessed, the amount of such tax, and the date of the delivery to him of the assessment-roll on account of which such tax was paid. For the purpose of giving such receipt, each collector shall have a book of blank receipts, so arranged that when a receipt is torn therefrom a cor. responding stub will remain. The state board of tax commissioners shall prescribe the form of such receipts, stubs and books and they shall be furnished to the town collector by the board of supervisors, at the expense of the county; to the city collector by the common council, at the expense of the city; to the village collector by the village trustees at the expense of the village; to the school collector by the trustee or trustees at the expense of the school district. At the time of giving such a receipt the collector shall make the same entries on the corresponding stub as are required to be made on the receipt. Such book shall be subject to public inspection and shall be filed by the collector with his return, together with the assessmentroll in the office of the county treasurer, or such officer or board to which such collector makes his return. (Sec. 94, Tax Law, as am'd by ch. 579, L. 1911.)
The statutory provisions of this chapter on the collection of taxes apply to all the cities or towns of the state, in so far as the matters herein provided for do not conflict with the special and local laws of such cities and towns. (Section 95, Tax Law, added by Chapter 489 of the Laws of 1897.)
COLLECTION BY JUDICIAL PROCEEDINGS.
The third step in the collection of local taxes in arrears from corporations is collection by judicial proceedings. The collection of local taxes by supplementary proceedings is a method usually resorted to throughout the state, and applies both to real and personal taxes in arrears. In the city of New York under the provisions of the Charter of Greater New York, there is an additional remedy by action, but this remedy applies only to personal taxes in arrears.
The statute regulating the bringing of supplementary proceedings for the collection of taxes is as follows:
Supplementary proceedings to collect tax.-If a tax exceeding ten dollars in amount levied against a person or corporation is returned by the proper collector uncollected for want of personal property out of which to collect the same, the supervisor of the town or ward, or the county treasurer or the president of the village, if it is a village tax, may, within one year thereafter, apply to the court for the insti. tution of proceedings supplementary to execution, as upon a judgment docketed in such county, for the purpose of collecting such tax and fees, with interest thereon from the fifteenth day of February after the levy thereof. Such proceedings may be taken against a corporation, and the same proceedings may thereupon be had in all respects for the collection of such tax as for the collection of a judgment by proceedings supplementary to execution thereon against a natural per. son, and the same costs and disbursements may be allowed against the person or corporation examined as in such supplementary proceedings, but none shall be allowed in his or its favor. The tax, if collected in such proceeding, shall be paid to the county treasurer or to the supervisor of the town, and if a village tax, to the treasurer of the village. The costs and disbursements collected shall belong to the party instituting the proceedings, and shall be applied to the pay. ment of the expense of such proceeding. The president of a village and a county treasurer shall have no compensation for any such proceeding. A supervisor shall have no other compensation except his per diem pay for time necessarily spent in the proceeding. (Sec. 299, formerly 259, Tax Law.)
Source: Ch. 361, L. 1867, as am'd by ch. 640, L. 1881; without material change.
The application.—The application under this section must be made to the court and not to a judge thereof. Matter of Wright, Peters & Co., 73 App. Div. 75 (1902). The affidavit on which the application is made need not allege all the facts necessary to show jurisdiction in the assessors and supervisors. It is sufficient if the formal requirements of the statute are observed. Matter of Conklin, 36 Hun, 588 (1885).
In the city of New York, the city chamberlain acting as county treasurer may make application under this section. The additional provisions of distress and sale, and action given by the New York Charter are not inconsistent with the remedy under section 299. In re Gould, 75 App. Div. 576 (1902).
This section applies also to the city of Rochester. No formal return of the warrant by the collector is necessary, and, if the warrant has been returned to the county treasurer uncollected, and the tax bill marked “not paid,” it has been held to be a sufficient return. In re Veith, 165 N. Y. 204.
Motion for dissolution or vacation of order.- When an order for the examination in supplementary proceedings has been improvidently granted a motion for the vacation of the order will lie. Bassett v. Wheeler, 84 N. Y. 468 (1881). Such a motion will lie when the warrant for the collection of the tax was issued without seal. City of Rochester v. Bloss, 77 App. Div. 28 (1902); aff'd 173 N. Y. 646.
The examination.— The delinquent taxpayer cannot prove on the examination that he had sufficient property out of which the tax could be collected. In re Hartshorn, 17 N. Y. Supp. 567 (1892); see, also, In re McLean v. Erlanger, 62 Hun, 3.
What may be reviewed on appeal.-On appeal to the Court of Appeals the question as to whether the person proceeded against was a resident will not be reviewed. Bassett v. Wheeler, 84 N. Y. 468 (1881).
Dismissal of suits or proceedings.- Where the person or corporation against whom a proceeding or suit is brought to collect a per. sonal tax in arrears, is unable for want of property to pay the tax in whole or in part, or where for other reasons, upon the facts as they existed, either before or after the assessment was made, it appears to the court just that said tax should not be paid, the court may dismiss such suit or proceeding absolutely without costs or on payment of such part of the tax as may be just, or on payment of costs and may direct the cancellation or reduction of the tax. (Sec. 301, Tao Lawo, as am'd by ch. 374, L. 1909; former sec. 259a Taw Laro.)
Source: This section was added by ch. 348, L. 1905.
This statute, which was amended in 1909, to give the court greater power in the dismissal of actions to collect personal taxes in arrears under the New York Charter, also gives the court discretionary power in relation to the disposition of proceedings brought to collect personal taxes in arrears. It has been held that the excess of a corporation's indebtedness over its assets is not a sufficient reason for the dismissal under section 301, Tax Law, of an action brought to collect a personal tax in arrears, particularly when the corporation made no attempt to obtain a reduction of the assessment before the Tax Commissioners or cancellation thereof by certiorari proceedings. City of New York v. Chase Talbot & Co., 206 N. Y. 1 (1912); reversing 148 App. Div. 284.
An additional method of collecting taxes, applying only to corporations, is in the nature of a sequestration proceeding brought by the attorney-general of the state. Section 306 of the Tax Law regulating this proceeding is as follows:
Attorney-general to bring action for sequestration. It shall be the duty of the attorney-general, on being informed by the comptroller or by the county treasurer of any county that any incorporated company refuses or neglects to pay the taxes imposed upon it, pursuant to articles one and two of this chapter (secs. 1-49 of the Taw Laro), to bring an action in the Supreme Court for the sequestration of the property of such corporation and the court may so sequestrate the property of such corporation for the purpose of satisfying taxes in arrear, with the costs of prosecution, and may, also, in its discretion, enjoin such corporation and further proceedings under its charter until such tax and the costs incurred in the action shall be paid. The attorney-general may recover such tax with costs from such delinquent corporation by action in any court of record. (Sec. 306, Tax Laro; formerly sec. 263, Taw Law of 1896.)
Source: R. S., pt. 1, ch. XIII, title 4, secs. 21 to 23.
The above section in substance was contained in sections 21 to 23 of the Revised Statutes of 1827, and has been retained in the present Tax Law. While it seems rarely to have been enforced, there is no reason to doubt that it supplements such other methods for the collection of taxes from corporations as may be provided for by the local charters, or by the general system of collecting taxes.
The procedure under this section is, however, limited to the collection of taxes imposed on corporations "pursuant to articles 1 and 2 of this chapter," the words quoted being added in the present revision of the Tax Laws. Articles 1 and 2 of the present Tax Law cover the assessment of persons and property for local purposes, including the assessment of the real and personal property of corporations and individuals, and the special franchise tas.
This limitation, therefore, does not make it applicable to the collection of the franchise tax from corporations under section 182 et seq. of the Tax Law, although it seems that prior to this limitation such taxes might also be collected thereunder. Central Trust Co. v. N. Y. C. & N. R. R., 110 N. Y. 250 (1888).