People ex rel. Butterick Publishing Co. v. Purdy , 138 N.Y.S. 707 ( 1912 )

McLaughlin, J.:

The relator’s capital stock was assessed, under section 12 of ■the Tax Law (Consol. Laws, chap. 60; Laws of 1909, chap. 62) on the second Monday in January, 1911, for purposes of taxation for that year, at $250,000. Within the time provided by statute the relator appeared before the commissioners of taxes and assessments and requested that the. assessment be revised and corrected by deducting as debts owed by it two items amounting in the aggregate to $900,321.29. One of the items consisted of the sum of $503,170.25, the amount of subscriptions paid in advance to the relator for certain magazines or .periodicals which, at the time the assessment was made, had not been printed or published. The other was the sum of $397,151.04, which the relator alleged was a debt due to merchants or agents on account of the possible redemption of patterns which might thereafter be returned. The commissioners of taxes and assess- , ments refused to make these deductions and finally fixed the assessment against the relator’s capital stock as originally made, viz., $250,000. Thereupon the relator applied for and obtained a writ of certiorari "to review such action. Defendant then moved upon the petition, order for the writ, and the writ itself, to quash the same and dismiss the proceeding. The motion was granted and the relator appeals from the order.

First. As to the amount of $503,170.25. The relator is engaged in printing and publishing periodicals and selling the same by subscription. These periodicals are published at stated periods and it accepts payment for the same for the term of one year in advance. The advance payments for subscriptions which have not been entirely fulfilled by the relator make up the item under consideration. The relator’s contention is that these unfulfilled subscriptions constitute a debt to the subscrib-. ers of such a character as entitle it to deduct the same from its assets in determining the value of its stock for the purposes of taxation. I am of the opinion that a. prepaid subscription is not a debt within the contemplation of the statute which entitles the relator to a deduction. At most it is an obligation on the part of the relator to perform its contract and could not by any possibility become a debt within the contemplation of the Tax Law until it had defaulted in so doing. The relator is solvent, it has in its assets the money thus received, and no claim is made, or even suggested, that it is not pecuniarily responsible or able to fully perform its obligation by printing and publishing the periodicals for which it has received advance payment. Its obligation to print and publish the periodicals is a contract obligation and not a moneyed one. In no sense do I believe it can be considered a debt within the meaning of the Tax Law. (People ex rel. Strauss v. Coleman, 44 Hun, 20.) If considered a debt, the relator’s liability is so speculative and remote that the .commissioners were justified in refusing to deduct it. (People ex rel. National Surety Co. v. Feitner, 166 N. Y. 129; People ex rel. N. Y. & N. J. Tel. Co. v. Neff, 15 App. Div. 8; affd., on opinion below, 156 N. Y. 701.)

The case last cited, as I read the opinion, is directly in point. There the telephone company claimed a deduction for advance payments for telephone service, and in holding that money thus received was not entitled to be deducted the court said: “The unearned rentals consist of advance payments for telephone service, without, so far as appears, any option on the part of those making the payments to relinquish and have the amount paid refunded, but it seems that the right to repayment is wholly dependent upon the default of the relator, and as there is no reasonable ground to apprehend its failure since it has a fair surplus and pays seven per cent dividends on its stock, the advance moneys paid on rentals may properly he included in the assets of the relator. * * * The liability of the relator to repay the money so advanced is too slight, speculative and remote to require consideration. ”

Here the relator does not claim that it was, at the time the assessment was made, under any obligation to return any portion of the advance subscriptions and of course it could not be compelled to do so unless it failed to fulfil its agreement in respect to furnishing the periodicals. It appears, as already indicated, that it is able to carry out these contracts, and there is not even a suggestion made that it will, in the future, be unable to do so.

Second, as to the amount of $397,151.04. The relator, in addition to publishing periodicals, is engaged in selling paper patterns. It sells these patterns to merchants under a written contract by which each agrees to purchase and keep on hand at all times during the life of a contract a given number of patterns and at the termination of the contract the relator agrees to repurchase those that have not been sold, and to pay therefor seventy-five per cent of the price which the merchants paid. The sum here under consideration is the amount received for patterns which had not, at the time the assessment was made, been sold by the merchants. The contracts under which they had been delivered by the relator had not expired and whether they would he sold before, that time was. not made to appear, and obviously could not have been, because neither the relator nor the merchants could tell what the future would develop. The liability of the relator to redeem or take back the patterns, or any of them, is in many respects similar to the liability of a fire insurance company to return a portion of a premium on the surrender of a policy. The contract of insurance gives to the insured the right to have his policy canceled, and, if he doés so, entitles him to a portion of the unearned premium. Here the contracts' under which the patterns are delivered give to the parties receiving them the right to return them, and in that case to receive a portion of the purchase price. It may be that the relator will have to redeem some of the patterns on contracts which were outstanding at the time the assessment was made, but upon what contracts or how many patterns could not be ascertained, so that its liability in this respect was not only contingent, but purely speculative.

In denying the right of a fire insurance company to deduct the amount of unearned premiums, the court, in People ex rel. Westchester Fire Ins. Co. v. Davenport (91 N. Y. 574), said: “ The liability of an insurance company to refund any part of the premiums received by it is remote and contingent and does not constitute one of the objects contemplated by either party in entering into a contract of insurance. -x" "x" * Neither in

law or equity does this liability constitute a debt owing by an insurance company which should be deducted from the value of its taxable property when it is called upon to bear its proportion of the burdens of government.”

This authority was followed and approved in People ex rel. American Fire Ins. Co. v. Feitner (168 N. Y. 615). (See, also, People ex rel. National Surety Co. v. Feitner, supra.)

I am of the opinion the order appealed from is right and should be affirmed, with costs.

Olarke and Dowling, JJ., concurred; Ingraham, P. J., and Scott, J. dissented, in part.