To provide against unforseen contingencies that may arise in the prosecution of the business of a corporation, which may result in the impairment of the net earnings, a gross sum should be deducted annually for the purposes of reconstruction and the rate of capitalization to meet depreciation should be at least one per cent. higher than the rate of income allowed. People ex rel. Manhattan Ry. Co. v. Woodbury (1911), 203 N. Y. 231. An assessment of a special franchise tax on a railroad company made under the net earnings rule will not be disturbed on appeal because a holding company controlling the railroad charged it, together with other railroads, for power furnished, for management, etc., upon a car mileage basis pursuant to agreement, where it does not appear that the railroad is paying too much for such services. People ex rel. Brooklyn H. R. R. Co. v. Tax Comrs. (1911), 146 App. Div. 372, 131 N. Y. Supp. 49, affd., 204 N. Y. 648. Where the property is part of a larger unit, the net earnings of the whole form no proper basis for determining the earnings of the part if the mileage included in the special franchise is the means of reaching the central point from which the business emanates and to which it converges. People ex rel. Commercial C. Co. v. Tax Comrs. (1917), 99 Misc. 532, 166 N. Y. Supp. 62. The franchises of the thirteen surface railroads which compose the New York City Railways system should be considered as one system, and for the purpose of special franchise assessments the value should be determined by the net earnings rule. People ex rel. N. Y. Rys. v. State Tax Comrs. (1917), 101 Misc. 205, 167 N. Y. Supp. 550. TAX LAW, CERTIORARI TO REVIEW CORPORATION TAX. (Fiero, Spec. Pro., 3rd Ed., pp. 1981-1986.) TAX LAW, § 198. Revision and readjustment of accounts by tax commission. § 199. Review of determination of tax commission by certiorari. § 200. Regulations as to such writ of certiorari. Tax Law, § 198. Revision and readjustment of accounts by tax commission. If an application be filed with the commission by the party against whom the account is stated or by the attorney-general within one year from the time any such account shall have been audited and stated, the commission may at any time upon notice thereof sent to the person, partnership, company, association or corporation against whom it is stated, revise and readjust such account and if it shall be made to appear upon any such application, by evidence submitted to it or otherwise, that any such account included taxes or other charges which could not have been lawfully demanded, or that payment has been illegally made or exacted of any such account, the commission shall resettle the same according to law and the facts, and charge or credit, as the case may require, the difference, if any, resulting from such revision or resettlement upon the accounts for taxes of or against any such person, partnership, company, association, or corporation. Such credit whether allowed before or after the passage of this chapter may be, by the person, partnership, company, association or corporation in whose favor it is allowed, assigned to a person, partnership, company, association or corporation liable to pay taxes under article nine of this chapter, and the assignee of the whole or any part of such credit on filing with the commission such assignment shall thereupon be entitled to credit on the books of the commission for the amount thereof on the current account for taxes of such assignee in the same way and with the same effect as though the credit had originally been allowed in favor of such assignee. The commission shall forthwith send written notice of its determination upon such application to the applicant, and to the attorney-general, which notice may be sent by mail to its post-office address. Amended by L. 1915, ch. 317. (B., C. & G. Consol. L., 2nd Ed., p. 8498.) Tax Law, § 199. Review of determination of tax commission by certiorari. The determination of the commission upon any application made to it by any person, partnership, company, association or corporation for a revision and resettlement of any account, as prescribed in this article, may be reviewed both upon the law and the facts upon certiorari by the supreme court at the instance of any person, partnership, company, association or corporation affected thereby, and in the name and on behalf of the people of the state. For the purpose of such review the commission shall return, on such certiorari, the accounts and all the evidence before it on such application, and all the papers and proofs upon the original statement of such account and all proceedings thereon. If the original or resettled accounts shall be found erroneous or illegal, either in point of law or of fact, by the supreme court, upon any such review, the accounts reviewed shall then be corrected and restated, and from any determination of the supreme court upon any such review an appeal to the court of appeals may be taken by either party. Amended by L. 1915, ch. 317. (B., C. & G. Consol. L., 2nd Ed., p. 8499.) Tax Law, § 200. Regulations as to such writ of certiorari. No certiorari to review any audit and statement of an account or any determination by the commission under this article shall be granted unless notice of application therefor is made within thirty days after the service of the notice of such determination. Eight days' notice shall be given to the commission of the application for such writ. The full amount of the taxes, percentage, interest and other charges audited and stated in such account must be deposited with the state treasurer before making the application and an undertaking filed with the commission, in such amount and with such sureties as a justice of the supreme court shall approve, to the effect that if such writ is dismissed or the determination of the commission affirmed, the applicant for the writ will pay all costs and charges which may accrue against him or it in the prosecution of the writ, including costs of all appeals. Amended by L. 1915, ch. 317. (B., C. & G. Consol. L., 2nd Ed., p. 8500.) It is a condition precedent to the making of an application for a writ of certiorari, to review a corporation franchise tax, that the amount thereof be deposited with the State Treasurer. People ex rel. Lehigh Valley R. R. Co. v. Sohmer (1914), 84 Misc. 518, 147 N. Y. Supp. 636, affd. (1916), 174 App. Div. 732, 161 N. Y. Supp. 557. Where a foreign railroad corporation duly authorized to transact business within this State and engaged in operating as lessee two domestic railroad corporations on demand by the State Comptroller to the lessor companies paid without objection within the time limited by statute the taxes upon the capital stock of said companies, and the Comptroller subsequently made an assessment against said lessee for a capital stock tax under the provisions of section 182 of the Tax Law covering the same years for which the lessee had already paid such tax for the lessor companies, the court is without power, no fraud being suggested, to grant a writ of certiorari ostensibly to review the latter assessment which had not been paid into the treasury as required by section 200 of the Tax Law, but actually to review the prior assessments and to have the payment of them credited as against the subsequent assessment. Matter of Lehigh Valley R. R. Co. v. Sohmer (1916), 174 App. Div. 732, 161 N. Y. Supp. 557, affd., 220 N. Y. 689. TAX LAW, SPECIAL PROCEEDINGS UNDER. (Fiero, Spec. Pro., 3rd Ed., pp. 1987-2004.) Art. I. Supplementary proceedings to collect tax. II. Personal taxes, how enforced or cancelled. III. Miscellaneous provisions relative to collection of taxes. ARTICLE I. SUPPLEMENTARY PROCEEDINGS TO COLLECT TAX. Foreign corporation not subject to examination, on account of nonpayment of tax assessed on account of its capital invested in business in this State, such assessment being in rem. Matter of Maltbie (1918), 223 N. Y. 227, revg., 179 App. Div. 395, 165 N. Y. Supp. 550; overruling in effect Matter of Bruere (1916), 174 App. Div. 298, 160 N. Y. Supp. 96; Matter of Maltbie v. New York & Phila. Coal and Coke Co. (1918), 223 N. Y. 633. ARTICLE II. PERSONAL TAXES, HOW ENFORCED OR CANCELLED. (Fiero, Spec. Pro., 3rd Ed., p. 1991.) TAX LAW, § 302. Cancellation of personal tax where it is void for want of jurisdiction. Tax Law, § 302. Cancellation of personal tax where it is void for want of jurisdiction. If a personal tax, levied against a person or corporation, or the property of a person or corporation, is void for want of jurisdiction of such person or corporation and has been returned by the proper collector uncollectible for want of personal property out of which to collect the same, the person or corporation against whom or against whose property the said tax was levied may then apply to the supreme or county court in the county in which is located the tax district where said tax was levied, for an order cancelling the said tax, and upon notice to the president of the village, county treasurer, supervisor of the town or, in the case of a city, upon notice to its attorney or to the corporation counsel, and upon satisfactory proof by affidavit, the court shall make an order directing the cancellation of said tax from the assessment roll by the county treasurer, comptroller, or other officer in whose custody and control the said roll may be. Amended by L. 1916, ch. 323; L. 1918, ch. 530. (B., C. & G. Consol. L., 2nd Ed., p. 8648.) ARTICLE III. MISCELLANEOUS PROVISIONS RELATIVE TO COLLECTION OF TAXES. (Fiero, Spec. Pro., 3rd Ed., pp. 1992-1994.) TAX LAW, § 298. Application to county court where taxpayer has removed from the county. § 306. Attorney-general to bring action for sequestration. Tax Law, § 298. Application to county court where taxpayer has removed from the county. If it shall satisfactorily appear by affidavit to the county court of any county that a tax legally levied therein can not be collected because of the removal of the person taxed to any other county of the state, such court, shall, upon application of the collector of any tax district or of the county treasurer of the county, grant an order, directed to the sheriff of the county where such person may be, to collect the same out of his personal property with interest at the rate of eight per centum per annum from the date of said order. Such order shall be filed in the office of the clerk of the county in which it is granted, and a certified copy thereof delivered to the constable or sheriff of the county where the person liable for the tax may be, and such constable or sheriff, on receiving the same shall execute it, and make a like return, and be entitled to the same fees and subject to the same liabilities and penalties for neglect as upon execution from any court of record. The sheriff receiving such moneys shall pay the same to the county treasurer of the county where it was levied, to the credit or the town in which it was assessed. Amended by L. 1916, ch. 323. (B., C. & G. Consol. L., 2nd Ed., p. 8645.) Tax Law, § 306. Attorney-general to bring action for sequestration. It shall be the duty of the attorney-general, on being informed by the comptroller, tax commission 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, 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 cost 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. Amended by L. 1916, ch. 323. (B., C. & G. Consol. L., 2nd Ed., p. 8649.) TENANT FOR LIFE, PROCEEDINGS TO DISCOVER DEATH OF. (Fiero, Spec. Pro., 3rd Ed., p. 2005.) TOWNS, EXPENDITURES OF. See EXPENDITURES OF TOWNS AND VILLAGES, INVESTIGATIOn of. |