Lacidem Realty Corp. v. Graves , 33 N.Y.S.2d 912 ( 1942 )

Heffernan, J:

(dissenting). Respondents denied petitioner’s application for the refund of emergency taxes on the furnishing of utility services paid under section 186-a of the Tax Law for the quarter year periods from the quarter ending August 31, 1938, to the quarter ending May 31, 1941, and that determination is the subject of this .review.

The petitioner is the owner of a ten-story building and pent house located in the city of New York exclusively rented to physicians, dentists, a private hospital, a drug store and a pathological laboratory. It purchases electric current from the Consolidated Edison Company of New York, Inc., at wholesale rates, a portion of which it itself consumes in the lighting of halls, operation of elevators and ventilating system, and a part of which it resells to its tenants. The electric current which is resold to the tenants is supplied to them through electric wiring circuits running to their respective premises, which circuits are owned by petitioner, and is measured by electric meters owned by petitioner and located on its premises. The electric current which petitioner resells to its tenants is billed to them separately from rental charges. The rate charged to them is the same rate charged for like quantities by electric corporations subject to the jurisdiction of the Public Service Commission.

The gross operating income which the petitioner reported and what has been used as the tax base included only income from the sale of electricity to the tenants. Petitioner has not been taxed for any electric current which it consumed, the taxes in respect to such current having been paid by the Consolidated Edison Company of New York, Inc., as the seller for ultimate consumption or use. The Edison Company is not liable to tax on that part of its gross income from electric current sold to the petitioner for resale to its tenants.

By chapter 321 of the Laws of 1937 the Legislature enacted section 186-a of the Tax Law providing for a tax “ * * * equal to two per centum, of its gross operating income * * * upon every other utility doing business in this State, * *

The term “ utility ” was defined as including “ every person * * * who shall engage in the business of selling gas, electricity, steam, water, refrigeration, telephony or telegraphy, delivered through mains, pipes or wires, or of furnishing gas, electric, steam, water, refrigerator, telephone or telegraph service, by means of mains, pipes, or wires: * *

The term “ gross operating income ” was declared to “ mean and include receipts received in or by reason of any sale made to persons for ultimate consumption or use by them of gas, electricity, steam, water, refrigeration, telephony or telegraphy, or in or by reason of the furnishing to persons for such consumption or use of gas, electric, steam, water, refrigerator, telephone or telegraph service in this State * *

By chapter 137 of the Laws of 1941, section 186-a was amended to provide, among other things, that the term “ utility ” includes persons who sell or furnish gas, electricity, etc., “ * * * regardless of whether such activities are the main business of such person or are only incidental thereto, or of whether use is made of the public streets; * * As so amended, section 186-a was made retroactive to May 7, 1937, the date the original act became effective.

Prior to the 1941 amendment of the statute this court in Matter of 339 Central Park West, Inc., v. Graves (260 App. Div. 265; affd., 284 N. Y. 691), following the decision of the Court of Appeals in Matter of 320 West 37th St., Inc., v. McGoldrick (281 N. Y. 132), construing a local law of the city of New York imposing a tax on utilities, held that section 186-a of the Tax Law was not intended to apply to an apartment house owner which purchased electricity from a public utility, submetered it and resold the same to its tenants.

The omission in the former law has now been supplied in the 1941 amendment. The tax no longer is upon those who engage in the business of selling gas, electricity, etc., but upon those who sell those commodities “ regardless of whether such activities are the main business of such persons or are only incidental thereto, or of whether use is made of the public streets.”

Under the statute as amended it is clear that the present tax is not imposed upon utilities as such. The tax is levied upon all persons or corporations whether falling within the definition of utility or not which sell gas, electricity, etc., for ultimate consumption or use. Any possible doubt as to the nature of the tax has been removed by the efimination of the old title of the section: “ Additional tax on utilities ” and the substitution of the new title: “ Emergency tax on the furnishing of utility services.” The tax is, in fact, the exact equivalent of a retail sales tax on given commodities. Such a tax imposed at a uniform rate and from which no seller at retail is exempt does not violate the equal protection clause of the State Constitution as contended by petitioner for the reason that any element of discrimination is entirely lacking.

A sales tax need not embrace all commodities or types of business establishments and petitioner is not discriminated against simply because general business is not subject to this tax. (Matter of Schulte, Inc., v. Graves, 242 App. Div. 724; affd., 266 N. Y. 592; appeal dismissed for want of a substantial Federal question, 296 U. S. 536.)

Petitioner also challenges the validity of this statute because of the retroactive provision. A tax is not necessarily unconstitutional because retroactive. (Welch v. Henry, 305 U. S. 134; Milliken v. United States, 283 id. 15.) As a rule retrospective statutes are deemed valid where the State Constitution does not forbid them. In exceptional cases only have they been held unconstitutional. (Untermyer v. Anderson, 276 U. S. 440.)

In our opinion the 1941 amendment to the section of the Tax Law in question is valid and constitutional and the determination of the Commission should be confirmed, with fifty dollars costs and disbursements.

Order of the Tax Commission annulled and matter remitted, with direction to respondents to cause a refund to be made in accordance with the prayer of the petition.