Citation Numbers: 47 Misc. 267
Judges: Leventritt
Filed Date: 5/15/1905
Status: Precedential
Modified Date: 1/12/2023
This is an application to quash a writ • of certiorari and depends for its disposition on the determination of the question whether the city of Hew York is or is not a single tax district.
According to the petition, Joseph H. Goodwin died in Hew York county, August 9, 1903. Letters testamentary on his estate were issued on September 24, 1903, to the relators Emma L. Moller, a resident of the borough of the Bronx, and Isaac P. Smith, a resident of the. borough of Manhattan.
On the assessment-roll for the borough of Manhattan fox the year 1904 appeared an assessment in the following form:
This tax was paid by the relators in time to get the benefit of the rebate allowed by law and they received a receipt in full fromi the receiver of taxes.
The petition further shows that' on the completed assess
It is alleged that it was the intention of the tax board to place upon the relators, as executors and trustees of the estate of Joseph II. Godwin, a further assessment in addition to that imposed by the roll for Manhattan borough. The additional assessment is asserted to be illegal and void on the ground that the estate is assessed twice in the same year in an entire tax district. The corporation counsel seeks to sustain the assessment on the ground that the city of Mew York is made up of five separate tax'districts.
The error in the description of the estate as that of Goodwin, instead of Godwin, may be disregarded. The entry in the first column of the first part of the assessment-roll (Tax Law, § 21, subd. 1) must be substantially accurate so as to enable a reasonably intelligent person searching the roll for an assessment against him to identify the name as intended for him, or the estate as the one for which he is acting in a representative capacity. Rumsey Taxation, 27, 179, and cases cited.
The serious question arises under sections 2 and 8 of the Tax Law and certain sections of the Greater Mew York charter.
Section 2 of the Tax Law defines a tax district as follows:
“ Tax district as used in this chapter means a political subdivision of the state having a board of assessors authorized to assess property therein for state and county taxes.”
It is to be noted that the use of this term as defined was original in the Tax Law (Laws 1896, chap. 908). Section 8 of the law provides: “ Every person shall be taxed in the tax district where he resides when the assessment for taxation is made, for all personal property owned by him, or un
If the borough of the Bronx and the borough of Manhattan can be treated as separate tax districts, the Bronx assessment, which is the sole one here involved, can be sustained on the theory of the presumption of law in favor of the legality of an official act; that is to say, it would be presumed that the commissioners had acted according to law and had imposed an assessment only upon one-half of the property held by the relators. People ex rel. Kellogg v. Wells, 92 N. Y. Supp. 5. “ The burden would be on the relators to overcome this presumption by proof.”
Tinder the Tax Law and the charter, however, the borough of the Bronx cannot be considered as a separate tax district. It is not a political subdivision of the State; it has not a board of assessors authorized to assess property therein for State and county purposes. The political subdivision is the city of New York; the department of taxes and assessments is one of the city departments, and it is the head of that department that is called the “ Board of Taxes and Assessments.” Greater N. Y. Charter, §§ 884, 885. There is no separate board for each of the five boroughs constituting the city, and it is not even incumbent that each borough be represented on the board, although no borough except that of Manhattan may have more than one resident as a member. Ibid. 885. The charter provides for a complete devolution of the rights, powers and duties of the several tax boards of the various municipal corporations consolidated by the act on the “ board of taxes and .assessments in the City of Hew York ” and authorizes this single board to adopt a common seal. § 886. It vests in the new board all the functions devolved by law upon the tax departments of the various municipalities. People ex rel. Thomson v. Feitner, 168 N. Y. 441, 448. The main office of the board is in the borough of Manhattan;
The defendants invoke various sections of the charter to show that each borough is a separate tax district. Thus they instance the making of the original assessments by the deputy tax commissioners (§ 889), the maintenance of the branch offices in the various boroughs and the keeping of the books and records there for the convenience of the taxpayers (§ 890), the hearing of applications for the reduction of taxes at the various borough offices (§ 898), and especially, that part of section 894 which reads; “ If, at any time prior to the first day of May in any year, it shall appear to the tax commissioners that a person assessed for taxation on personal estate on the books or rolls of one borough should have been assessed therefor on the books or rolls of another borough, they shall forthwith cause the assessment to be cancelled and a new assessment to be made on the proper books or rolls, and within five days thereafter shall cause written notice of the new assessment to be mailed to such person at his last known residence or business address within The City of Mew York, and an affidavit of the mailing of such notice to be filed in the main office.”
I think none of these provisions taken singly or together sustains the claim made. They relate primarily to matters of procedure, and while they may affect the validity of a
The direction “ to cancel ” ' and to make a “ new assessment ” in section 894 does not, to my mind, permit the argument that the use of these words indicates an assessment in the wrong tax district as that word is used in the State law. The procedure commanded by statute not having been followed, and there being an erroneous entry on one roll, it must of necessity be “ canceled ” before it can properly be entered on another. The use of the words “ new assessment ” does not mean an assessment do novo. ¡No further proceedings are required by the deputies, or by the board toward fixing the amount of the assessment. That remains. The tax commissioners are directed “ forthwith ” to cause the new assessment to be made on the proper books or rolls. It requires simply a transcription from the wrong to- the right roll. It does not require a new assessment to be made; it requires a new assessment on the proper books. There being no entry on the right books, any thereon will be a new one. The effect of the whole provision is to direct not the institution of a further original proceeding, but simply a transcription, a transference.
As a result of this review of the section of the charter and the Tax Law, I am of the opinion that, on principle, the city of ¡New York is a single tax district. This view also finds support in authority.
In McHarg v. Gaus, 169 N. Y. 18, the court held in a case involving taxation in the city of Albany, that chapter 86 of the Laws of 1850, providing for the assessment and collection of taxes in that city, should be construed in harmony with the Tax Law. The act of 1850 required taxation to be made by wards and the preparation of a separate assessment-roll for each ward. The Tax Law required that each person be taxed in the tax district where he resides. Construing the sections together, the court held that the city of Albany being a political subdivision of the State, having a board of assessors- authorized to assess property therein for State and county taxes, an assessment on the roll of
So, in the case at bar, the city of Hew York is a tax district ' under the general law, and the directions as to the books to be kept and the matters to be done in the several boroughs are mere details of procedure. Where omissions to comply with the statutory requirements, or to- make the correction in a proper case, required by section 894 of the charter, result in a failure to give the person assessed the notice contemplated, then the assessment may be bad, but the city of Hew York, as a whole, does not remain the less a single tax district.
It follows from this discussion that the city of Hew York, being a single tax district, there was no- authority to make the second assessment complained of. The requirement of section 8 of the Tax Law is that each person shall be taxed in the tax district where he resides for all the personal property under his control as executor, and it is only where the property is under the control of two or more executors residing in different tax districts that an assessment against each for the portion held is justified.
I conclude, therefore, that the writ should not be quashed.
Motion to quash denied.