Friedman v. State , 268 N.Y.S. 522 ( 1933 )

Barrett, P. J.

This is a claim against the State for a refund of taxes paid under protest. The claimant is a voluntary unincorpotated association and makes this claim through its treasurer.

Under claimant’s auspices on August 24, 1931, wrestling matches were held in a stadium under lease to the Inter-City Exhibition Corporation, a domestic corporation at Long Beach, N. Y.

The tax was collected from the proceeds by an inspector of the State Athletic Commission pursuant to section 25 of the State Athletic Commission Law, which at the time read as follows: “ § 25. Payments to State. Every corporation holding any boxing, sparring or wrestling match or exhibition under this act for which an admission is charged and received, shall pay to the department of State five per centum of the total gross receipts, exclusive of any federal taxes paid thereon. Such payment shall be paid within forty-eight hours after the holding of the contest.”

It is claimant’s contention that the section quoted is not broad enough in its language to cover an association such as this. We agree with that contention. In some of our taxing statutes it is provided that the word “ corporation ” includes an association but no such provision was included in the statute here under consideration at the time the tax was collected. The statute in that respect was subsequently amended. (Laws of 1933, chap. 625.) In the absence of such a provision, we are convinced that the tax was illegally collected and must be refunded.

On account of the illness of Judge Parsons, this claim is being decided by two other members of the court.

Ackerson, J. concurs.