Petition for Writ of Certiorari — Joseph v. Carter & Weekes Stevedoring Co.

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Supreme Court of the Unifed States

re TOBER TERM, 1915 | |

sn, FRY 26 » co

et Fi

Tianp Mit 1). Nie Cocoh toyed | A C eons i} 4 ple “p oo] thes iv «ol ne

“York, and? Arsinginpo Porveonio, Treasurer’ ot the Cit

of New Yo rk.

PETITION FOR WRIT OF CERTIORARI “TO THE

SUPREME COURT OF THE SITE OF NEW YORK

AND BRIEF IN SUPPORT THEREOF

lnaartcs M. W

Isanc C. Dowsna’

; Counsel for Wie.

VE vara ted pee! Huileline.

New’ York, NOY

}

~ c

Ps - INDEX

Petition: Pats ; Ei ees ‘

fe “ als s R

Petitioners “20... Ss coostieebeins edad

Jurisdiction ir: Te

The Statutes, ae Which Is Involved...

Opinions Below | ~00s ee aay

Summary Statement of the Matter Involved,.........

Question Presented

PSUR AUNTIE OT EO

Reasongf#or Allowance of the Writes 000.00 ccm.

Brief : :

" Stat@ment of the Case... SR EN tes

Jurisdictional Statement and Assignment of Evrors

Argument

J. Under the principles enunciated in Western

Live Stock vy. Rureau of Revenue, 303 U.S.

250 (1938), and an unbroken line of later

cases the tax imposed upor espondert’s

gross receipts from its activities carriea on

exclusively within the City of New York is

clearly valid under the Commerce Clause.

The holding in the Puget Sound ease...

\ °

Puget Sound holding is irreconcilable with

inden aiiebane oe a

Puget Sound case is in effect overruled

by the later cases relied om by ‘peti-

tioners ......

PAGE.

< oe

. De tke ; PAGH

Il. The New York Yity general business tw, as

applied to respondent's receipts is not barred:

—— bythe Commerce Clause, simec it ig Tot an

a: a A sition burden ‘on interstate com-

mn . . . Rood . wy a |

There is no diserinfination. oo

“- S'The tax is cominendurate with the tax-

pavera loon) GtIVity 0. li

v e

There is no possibility of -an undue or

multiple burden on interstate commerce... 18

Appfegdiag A. \ Provisions ot tated Bt cteen

Apypndix B. )Provisions of State Enabling Acts.~. 38

Appendix C. , Provisions. of Article 2-B of General

| ‘

. Clark & Sou, Matter of John T.. v. MeGoldrick, 269

" &

Table of. Cases Cited

Adaaus M te. (C'o. v. Storen, 304 U.S. 307 isond 12, lo

NNied. Mills, Ine. y. Pept. of Treasury; 318 U.S. 7407

(1943), aff'g 220 Ind. 340, 42 N. BE. 2nd 34-(1942)... 12. 6

Carter & Weekes Stevedoring Co. Matter of, v.

MeGoldrick, 204 N.Y. 906 (1945) 0 a, 3

“App. Div. 68541985). aan 4

Clark & Son, Matter of John AY, v. MeGoldrick, 294

N.Y. 908 (1945) cite iasaneclodaleee 4

Coverdale v. Pipeline Co.\303 U.S. GO4 | 1938)... I .

Dept. of Banking v. Pink, 317 U.S. Bay (1942)... =

— S

‘ ¢

4 : : PAGE

Dept. of Treasury: v. Ingram-Rie -hardson Mfg. ¢ the ,

313 USS » 252 (1941)... RPK RAP TENE

| Dept. of T reasury v. Wood Preserving Corp: 313 — ,

Se en ee ee eS

iwin, White & Prinee, Ine. <. taalbicad 305 U.S

Af) PEL ee Ye ty!

o igang Harvester Co. v. -Dept. of ‘Treasury,

2 U.S. 340 (1944)... SE OMNI Se De

sik Berwind-W hite te Cook Mining Co,, 308

U.S. 546 (1939) REE evUON Aes ece E RANT Me ee CEE 2

yee v. Berwind-White Coal Mining Co., 309

33 (1940)_. Ecabtesiacetibcas-oahneiiave 12315

MeGoldrick v. hore Gener . ‘Tramatlaniqu At

307 U.S. 620 (1939)... Ce pathernnntioneesin ere ty

McGoldrick vy. Gulf Oil Corse 308. U. - 40 (1999)

O'Kane v. State of New York, 283'N, ‘Y. 439 (1940)... ae

ihive Coat Col, Matter of, v. Me(oldrick, 287 N. Y.

769 (1942) 2... agate tee eas 13n

Paget Sound Co. v. Tax Commission, 308 U.S. 90 _

{| Le Aen bane:

Western bias Stock v. Bureau of Revenue, 303 U.S.

250) || rome

Other Authorities Citedy,

Lockuart, Gross Receipts Taxes on Piet state Trans-

portation and Communication, 57“Harv. L. Rev.

40 (1943) Sera i4

¢ . o

iat. “

; PAGE.

P Index to Statutes Cited

- Administrative Code of the C ity of New York, C hap.

—_. 41—

General City Law of New-York, Article 2-B... 3, 4, 44-46

Laws of New York of 1934, Ch. 873... me Riehl 3,4

Laws of New York ot 1940, Ch. 245. elaacde anos en 4, 38-43

Laws of New York of 1941, Ch. 199.000.0000. oor

Koeal Laws of the C itv of New ¥ork--" , i

No. 20 of 1988... EES TAED- ee tate oe Scoeiioe .% 3

No. 103 of 19394... ee aay,

No. 78 of 1946... PSS eS A ATE gl nee 3 4, 21-37

No. 47 of 1941... Ri ita a eee

US. CA Title 28, a. subd: tb). be

U.S. Constitution— ;

. Commerce Clause (Art. 1, $8, el. 3)...

5 } \ 1.2.6.8 19.18, 16. 19

af . NX ™ a : \

Supreme Court of the. United States

OCTOBER TERM, 1945 .

o. *

’ No. .

‘ ae £

- & : 7 ; : =: e cs

Josep D. McGotpriex, Comptroller of

the City of New York, and ALMERINDo

PortroLio, Treasurer ‘of, the City of 7. . |

new Wk " or a

i oe ° Petitioners, \.

against

‘lony T. CrarK & Son,

: Respondent.

& . :

SUPREME COURT OF THE STATE OF NEW YORK

To the Honbrable the Supreme Court of the United States:

The petition 6f Joseph D. MeGoldrick, Comptroller’ of

che City of New York, and Almerindo Portfolio, Treasurer

» 4 hd . % , U a

tthe City of New York, respectfully shots:

a +8

|. Your petitiohers. sre the Comptroller and: Treasurer,

“spectively, of the City of New York, charged i, with |

‘he duty of administering and enforcing the tax laws here

nvolved. The petition seeks review of a decision of the

“ourt of, Appeals of the State of New York holding that by

virtue of the Commerce Clause of the United States Con-

‘itution (Art. 1, §8, el. 3) the New York City general busi-.

wess tax may not be imposed upon respondent’s gross

receipts from its stevedoring activities carried.on exclu-

Wely with®y the territorial limits of °the ig of New

f -

PETITION FOR WRIT OF CERTIORARI TO THE :

/ «

‘Vork. ‘The Court of PORE stated in its decision that j in:

‘deciding the matter This federal constitutional question was

prese nted and necessarily passed upon by it (R. 183).

2. 2 companion case involving exactly the same. ques-

tion, Matter of Cartgr & Weekes Stevedoring Company v.

McGoldrick, 2994 N¥Y; 906:(1995), was decided simultane-

~~ ously with the present case. ,A petition for certiorari in that

~ case is being presented together with the present petition.

— Jurisdiction and Timeliness —

The petition for certiorari is made under 28 U. S.

C. A. $344, subd. (b), and the Court has jurisdiction to |

grant the writ. McGoldrick v. Compagnie Generale Trans-

atlantwjue, 307 1. S..620 (1939); McGaldrickv. Berwind-

" White Coal Mining Co., 308 U.S 546 (1939) ; McGoldrick

v. ue Oil Corp., 308 U.S. 545 (1939).

oo.

4. The -decision of the Court. of Appeals was handed

down on July 19, 1945 (2944¢N. Y. 908). ° On or about

August 11, 1945, the: remittitur*was filed in the office of. 2

the County Clerk of New York County, who is the Clerk °

of the Supremeé Court of the State of New York, New York

County, and accordingly the reqmittitur is in- the custody

of the Supreme Court. ‘A final order, of the Supreme

Court, New York County, was entered upon the remittitor |

“on August [8 1945. Phis petition is beingypresented with-

in three months of the date of the decision of the Court -

of ig ete is therefore timely. Dept. of Banking ¥.

Pink, 317 U.S. 264 (1942). } is

5. The decision of the Court of Appeals was based solely’

ou the ground that the tax as applied violated the}Com-

merce Clause of the federal Constitution (R. 183). At, the

' hearing before the petitiqner- -Comptroller: upon’ the appl

cation of the taxpayes (respondent heré), for refund of

)

¢ .

gene oral busittess tax paid, the taxpayer raised thisground

of objection to the tax relying on the decision of this Court

in Puget hound Co. v. Tax Commission, 302 UsS. 90 (1937¥ - ine

IR, 24-26, 89, 93, 97, LOL). Theregtter it.was’ ‘again raised

in the preceeding broiight by the respondent in the Appel-

late Division of the Supreme Court, First Department, to

review fhe Comptroller’s final determination denying its ap-

plication for refynd (R. 11). The nef) Me Division sus-

tained the ‘objection and annulled the ¢ Comptreller’s: deter-

mination ‘and directed that the taxes “in question be re-

funded ‘to the respondent on the authority of the Puget

Sound case, supra (R. 181). Upon appeal by petitioners to ’

‘the Court of Appeals, this federal question was the only

me presented. The Court of Appeals affirmed, saying :

“A question under the Constitution of the United States

was presented and necessarily passed upon”. (294 N.Y,

AYR), age 1

x ; ‘. Pai fe

OR ee wm - @ .

The Statutes, the Yalidity of 2 Which pena

a ‘4 Pie statutes, the constitiitionality of which is in-

‘volved, are the New York City general business and finan-

tial tax laws’ for the years 1938 to 1941, Local Laws No: 20

of 1938, No. 103 of 1939, No. 78 of 1940 and No. 47 of

1941 (constituting Titles O, R and fy of Chapter 4i of the | |

Administrative Code of the City of New York). ‘The first

three ‘of these local. laws were enacted pursuant to Laws

@ New York of 1984, ch. 873, as annually amended,

‘hich conferred upon the City of New York authority tv

inpose taxes Such as the State itself wight impose, includ-

ing a-general business tax on. gross receipts. Since 1941

the authority of the C ity to impose this type of tax derived °

irom Article 2-B of the General C ity Law of the State af

New York, which was added to the General City Law by

Laws of New York of 1941, ch. 199. So far,as a gen-

eral busines’ tax on gross receipts is concerned, Article 2-B

conferred upon the City of New York the same authority-

“Was theretofore conferred by Laws of New York of 1934/"

—

ch. 873. + Local Jaws imposing these taxes have. been

and continue to be renewed and ixtended. annually up to

~ the present time, ‘pursuant to the. Btate — acts au

~ thorizing then. >

The provisions of Local Law No, 78 of 1940 (Title R of

Chapter 41 of the Administrative Code) are “printed as

Appendix A. So far as-the issues here involved are con-

cerned, these provisions are substantially the same as the

provisfons of. the other loeal laws involved. | The provi-

ssions of the State enabling -act, pursuant 1o which that

local law was’ enacted (Laws of New York of 1940, ch.

245, amending lews of New York of 1934, ch. 873), are.

printed as Appendix B. The ‘provisions of this Act were

somewhat different’ when the 1938 local law was enacted,

the changes being necessitated by ‘new. provisions. in the

New York State Constitution, effective January 1, 1939

‘which changes did not, ‘and do not Wany way affect the

questions: raised and presented i in this case. The enabling

act for 1941 (Article 2-B of the General City Law) above

referred to, prescribes a model. general husiness tax law

»- which the City. is authorized to adopt. This model law

was copied | practically verhatim. from New York City’s

general business tax Jaw set out in Appendix A. Tie

-provisions of Article -2-B,*except for the model law, are.

set forth as Appendix, e.

‘Opinions Below

7. >The memorandum opinion of the Appellate: Division

ds reported ‘in 269 App.’ Div. 685 (1945), and reads’ as

follows. — : ie

“Detérinination of the Comptroller of the City %

. New ¥ork unanimously annulled, with $50 costs and

disbursements to the petitioner, and the respondents.

directed to refund petitjoner’s deposit, with interest om

the .autherity of far Sound Stevedoring Co, v. Tax

Commission. 7 302 U. S. 90). Settle order on notice.”

. The memorandum affirmance of the Court of Appes nls Is

reported in 24 N. Y. 908.

et pe D

: \e

7 | |

| Summary Statement of the Matter Involved

crimination upon all persons engaged in-or carrying on

vithin the City any trade, business or profession. Under

f1/10%, and under the 1941 law and thereafter at the raté

“if 1/20%, on-gross receipts received in or by reason of any

ale made or service rendered within the City. —

The taxpayer is a corporation with its principal ‘office

in the City of New York, engaged in-the general steve-

Birgoes and the contents of railroad f reight cars moving: in

interstate and foreign commerce, and in performing other

incidental services such as cleaning of docks,’ passenger

waiting rooms, and the offices of the steamship companies

serves, All taxpayer’s activities are performed within

the City of New York except a very small portion of its

rervices (yielding a tax of $488.36 out. of a total tax of

4,770.23), which are performed in‘ New Jersey>

The petitioners: did not in the Courts below and do nyt

-eré press the issue of the t taxabilitv of the New Jersey

ervices, The petitioners limit themselves here as thby did

in phe C ourts below solely to the question of the taxability

tthe respondent. on the activities performed wholly. within

the territorial limits de the City af New York: and upon

's receipts from those activities. ®The receipts cover only

the taxpayer's own activities and nothing more. Since

fone of the activities sought to. be taxed is eatried: on

utside ghee territagjal limits of the City, the taxpayer

“ould not be subje

eceipts by any offet state. If the taxpayer is exempted

‘ron the City g#neral business tax, it would he free. of

ul tax on-its receipts from these activities carried on

exclusively Within the City of New-York.

: -

a 7 , =

s, The City general business tax is imposed without dis-"

the first three local laws involved it was imposed at the rate |

loring husiness consisting of loading and unloading ships: |

ed to tax on these. activities or these

@.*=.

x - Question Presented

‘ oa ‘ i)

"The following question is presented in this case:

boa the New York: ‘City general, business tax ‘imposed

upon the respondent’s receipts from its stevedoring activi-

ties carried on wholly within the territorial limits of the

City of New York constitute att Unconstitutional burden on

interstate ecommerce ! ?

10,

Assignment of Errors $ 2

. v i ,

It is submitted that the Court of Appeals erred:

a) In failjag. to hold that. the City general business

tax was validly imposed upon respondent’s receipts

here ‘involved, under the recent decisions of this

‘Court starting with Western ‘Live Stock -v. Bureau

of Revenue, 303 U.S. 250 (1938), cited in the brief:

annexed hereto at-pase 12, mfra.

(b) -In ‘following the decision of this Court in Put

Sound Co. v. Tar Commission, 302°U. S. 90 (1937),

| waa accepting the holding in that case: rather than

the’ more recent principles enunciated by this Court

in the cases above referred to, as contrelling on

the question of the validity under the Commerce

Clause of the City general business tax as applied

_ to the respondent. ‘ '

+e} Ingholding that the City general business | tax as .

applied to respondent’s receipts from its stevefloring

netivities here sought to he taxed constituted ai

unconstitutional burden on interstate comme ree,

eo]

(d) In“vegarding itself as compelled by the Commerce’ |

Clause to affirm: the determination of the Appellate

Division and ‘to annni the Comptroiler’s determine

. tion*denving petitioner's: application for refund of

~~, Fr * ‘

City general business taxes paid by it on its receipts

from its stevedoring activities carried on wholly

within the territorial limits of ‘the City,

ge ‘Reasons cand Allowance of the Writ

lie The reasons relied on by petitioners for allowance

i the writ are as follows: 3 ‘

(a) de holding the City Peneral business tax in as ‘ap-

jlied to’ respondent’s ‘receipts from ‘its wholly intracity .

“evedoring activities tq be an unconstitutional burden on

iterstate commerce, -the Court of Appeals has decided a

wderal questién of substance in a way -not in accord with

‘he applicable decisions of this Court cited i in the aecom-

janving brief, for Fe Court of Appeals has held invalid

itex upen gross receipts, received from intérstate -com-

weree wich (1) does not in any way discriminate against

ir otherwise burden interstate commerce; and (2) is meas:

ured hy gross ‘receipts derived solely and exclusively from

itivities which do not extend beyond the territorial limits

f the City of New York. ; ‘

(b) This case and. its igi caxgeare test cases

*on the outcome Of which depend ‘ many other cases in-

whying substantially the same. question. New Yotk City:

« the fore most port, transportation and commercial center

nthe country. There are many and a- great variety of

“ibstantial ‘business concerns within the City ¢ gaged in

iromoting, servieing and transporting and deliv® ring goods

ad passengers in interstate and foreign cemmerce, whose

wtivities - are, either wholl¥, or to’a substantial degree,

‘aiTied on within the territorial limits of this City. These

elude stevedores, paasenger and freight agents, selling |

iid tiarketing agents, che.” The rece ipts from these hai

“sseS rin into substantial sums and’ the ge nerat businesy¢

aX on ‘Hap receipts is of considerable Comsequence,

local activities connected with or contributing to interstate

and foreign commerce enjoy all the benefits, advantages

and services afforded and provided by the City of New

-Yprk that are enjoyed by other persons carrying on busi-

ness Within the City unconnected with such commerce. The

tax involved being limited: to wholly local activity, it can-

not possibly, be duplfeated in any other jurisdiction, Henee,

the effect of the decision 6f the Court of Appeals is to

exempt persons: engaged in wholly local businesses. con,

nected with interstate commerce, from contributing a just

-share toward the cost of maintaiping and furnishing local

governmental services which they enjoy, and to transfer

the whole load te other Joecal. businesses: The Commerce

Clause was not intended to confer such‘preferences, and

it should not be interpreted to yield such a result.

(d).The decision of this Court.in Buget Sound Cory.

Tar Commission, supra, has in’ effect been overruled bye

later cases involving the question of the effect of the Con-

inerce Clause-upon the taxing power of the States, cited in

the attached brief, at page 12, infra, particularly —

White & Prince, Inv. v. Henneford, 305-U. 8S, 434 (1929

which involved ‘the liability of a taxpayer engaged, as was

the P uget Sound Stev@doring € ‘ompany, in rendering serv-

ices voynected with the shipment and sale of merchandise

in interstate commerce (1.¢., not a person shipping his own

merchandise), under the sane Washington gross receipts”

‘ax as was mvolved in the Puget Sound case. The States

and localities should know thee extent to which they tay

‘apply the general principles and doctrines enunciated by

this Court in the Western Live Stock and subsequent cases

in that line, and whether the Puget Sound case represents

i limitat ion upori those doctrines. .

Wuensrore, petitioners pray that a'wri fof certiorari ms!

he issued out of and under the seal of this Court directed

to the Supreme Court of the State of Néw York in and.for

the County of New York commanding that Court to certify:

“tomar 9

ind. send'to this Court oh a day certain to be therein desig-

nated a fuil and complete transcript of the record and all

proceedings of the said Court in- this cause to the end that

the case may be reviewed and’ determined in this Court as

provided in 28 U.S. C. A. §344(b); and that the final order °

ind judgment of the said Court and every part thereof may

e reviewed and éeorrected by this Court in conformity with

he Constitution and Laws of the United-States and that

the said final order and judgment may be reversed and the

(omptroller’s original determination denying the respond-

nt’s application for refund reinstated; and petitioners

pray for such other and further relief as to this Court may

ven just and proper, and the petitioners will ever pray.

Dated: New York, N. Y., October I7y 1945.

Josern D. Met JOLDRICK, ae

Comptroller of the Cy of New York,

7. ‘ and »

ALMERINDO PorTEROLIO,

Treasurer of the City of New York,-

Petitioners. -

by Isaac C. Donner, -

Counsel for Petitioners,

Municipal Building,

Borough of Manhattan;

* “New York City. *

Supreme Court af the United State

: OCTOBER ‘TERM, 1945

No. ' Te

. ie

Josepu D. ‘McGovprick, Comptroller of

the € ity of New York, and ALMERINDO

PorTFOLIO, Treasurer of the City. of

New York,,

Petitioners,

against — -

_ Joun T..\Crark & Son, - 1

- * oa Respondent. :

BRIEF IN SUPPORT OF PETITION FOR

CERTIORARI ;

“~<

Statement of the Case et

The respondent is a New York corporation engaged in

the business of general stevedoring, which consists of load-

ing and unloading ships’ cargoes and the contents of rail-

road freight cars, movirig, in, interstate and foreign com-—

merce “(R. 27-28, 63-64), and the performance of: other serv-

ices, such as cleaning of docks, passenger waiting rooms,

and the offices of the steamship éampanies it serves (R. 79).

Its sete office is in the City of New*York (R. 67) and all

its activities here involved * are performed solely and. et

. NS sealed at page 5, supra, a very small portion of the tax-

payer's stevedoring servicessare perforined in New Jersey, but the

tax on the receipts from those services is not-in issue here. As 10

the New Je rsey services, the City (lid not press. thé issue of ther

iaxability in the Courts below, and ‘does not do so now, but limits,

itself in this case solely 10 the taxability of re spondent on its activ

tes wholly within the City of New York.

es 11

dusively within the territorial limits of ‘the City of New

‘York (R. 71-73, 82 ). None of those activities, nor any part

,0f them, is carried on outside the territorial limits of the

City. All of the respondent’s contracts for its services are

made in New York City (R. 67). Its shops for the repair

of its machinery are loeated in the City (R. 67). The tax-

ayer is paid by its customers, #.e., the steamship: compan-

ies~Only for its steve ‘doring services agd only these re-

wipts from its own. activities in the ( itv are sought to be

taxed (R. 32, 40, 41-43)" ; ,

The New York City general business tax law iniposes a

‘ax upon all persons “carrying on orexereising for gain or

preefit within the eity any trade, business, profession, voea-

‘tion or commercial activity® (Title R, chapter 41 of the.

Administrative Code, §R41-2.0).. Under the local laws of

1938, 1939 and 1940, it was imposed at the rate of 1/10%

and since 1941 at’the rate of 1/20%, on all receipts. “r

ceived in and/or allocable to the city from such iealeaiing

vocation, trade, business: or commercial activity”. ({R41-

0). Receipts are defined as “thé gross receipts received

incor by reason of any sale rhade or services rendered or

-eommercial or business transaction had in the city”

SR4I-1.0, par..3). The City general business tax law

las a further provision ($R41-2.0, par. b) to cover situa-

‘tions where a receipt cannot validly be taxed in its eatirety

by reason of the provisions of the Constitution of the

Vhited States or otherwise. This provision authorizes the

“oinptroller to provide for allocation of such receipts so as

“0 Subject to tax only. such part thereof as. is properly

attrititable to the business done within’ the City. This

Provision does not directly affect. respondent. é

Jurisdictional Statement and Assignment nee?

of Errors

\ ; .

The Court will find these eqitiively at pages 2 and 6

of the pe tition, supra.

‘

on e

12 eee ar”

. | 3 : . : a

e ‘ @ be : » = —_———

nore ee POINT I

Under the principjes enunciated in Western Live

Stock v. Bureau of Revenue, 303 Yj. S. 250 (1938),

and an unbroken line of later cases the, tax jmposed

upon respondent's gross receipts from. its Wei

ried on exclusively within the City of

clearly valid under the C ommerce Clause.

a 4

sResponden ejection to the tax (R. 24), and the deei-

‘sions of the Courts below rested mya upon Puget Sound

Cow. Tax Commission, 302 U.S. 90 (1937). T hat CAR,

insofar’ ag. it, held. invalid ali ia’ ‘Commerce Clause a

State tax on gross receipts: from wholly local activities

connected with interstate commerce, is at variance and

“irreconcilable with the nume rous later decisions of this

Court onthat question,

Western Live Stagk v. Bureau of Revenue, 303 U. s, .

250 (1938); c ;

a Coverdale v. Pipeline Co., 303 U.S. 604 (1938) 5

Adams Mfg. Co. v: Storen, 304 U.S. 307 (1938) ;

Gwin, White & Prince, Ine. v. Henneford, 305 U.S.

434 (1939) ;

McGoldrick v. Berwind-White ‘Coal Mining C6, "809

U.§. 33 (1940) ;

Dept. of Tresgery¥ . Wood ‘Preserving Corp.,313

“TTS. 62 (1941);

Dept. of Treasury v. Ingram- Richettion Mfa. Co.,

313 U.S. 252 (1941): >

Allied Mills, Inc. v. Dept. of Treasury, 318 U. §. 74

(1943) :-aff’gyPer curiam 220) Ind. 340, 42 .N. E. 2d

34.(1942) ;

Inte rnational Harvester Co. v. Dept. of Treasury,

$22 U.S. 340 (1944). :

The principles enundjated in these cases should b

applied to the case ‘at bar.. This requires a reversalof

the Court helow.

13,

The holding in the Puget Sound cat

The Puget Sound case involved a gross reveipts tax on

wholly local stevedoring activities, as does the ease at bar.

The fact that stevedoring is involved in both cases is prob-

ably why the Puget Sound case was considered controlling

by the Courts below.*, This fact, however, is purely inei-

dental, merely establishing’ that- interstate commerce’ w>s

involved. The real question avas the effect of the Com-

merce. Clause on, the right of States to tmpose a tax on

sross receipts from interstate commerve. So far as this

question is concerned,:the essential facts of the Puget

Sound case are: (1) the taxpayer was engaged in an’ ac

tivity found -by the Court to be in interstate commerce;

M2) the taxpdyer’s activity was confined wholly to the

territorial Limits’of the taxing State, and the ‘gross receipts

taxed were derived from this wholly local activity. The

Puget Sound case held‘ the tax barred by the Commerce

Clause. ° of

The sun stihstance of the Puget Sound decision is

that persogs engaged in a Wholly local business in or ¢on-

nected with, interstate commerce = lap, by

the Stites to’a tax on gross receipts from that business.

Thos, the Court said (302 U. S., atop. 94):

“The busijess of loading and unloading being inter-

state o¢-‘oreign commerce, the state of Washington

ix npt at liberty to tax the privilege of doing it by

exacting in return therefor a percentage of the gross

rceipts. ** * The fact is not important that appellant

‘does business as an independent contractor as long as

the business that it does is commerce immune fxom

; regulation by the states. What is decisive is the

nature of the act, not the person of the actor.”

—_—_~

“This is indicated by the fact phe scape tks Court of Appeals

accepted and followed the tego. of the Hesterg Live Stock and

ater cases above'cited, in O'Kane v. State of New York, 283 N. Y.

439.41940), ahd Matter. of Olive Coat, Co. v. McGoldrick, 287 N.Y.

6% (1942, the latter che involving the same New York City

Zenera’ Inisiness tax law as 1s here involved, it did not do so in the

ase at har

+ er

—

Rae

Ps - > 14 \

om |

Puget Sound h@ding is irrecapcilable with later decisions

“This position has been completely discarded ‘by this

Court in itylater decisions, (See cases cited p. 12, supra).

» The views of this Court as expressed in these later cases

are stated As follows in Gwin, White & Prince, Inc. v. Henne-

ford, Supra- (305 U.S., at pp. 438-439) 2 a

“It has often been reeognized that ‘even interstate

buyiness must pay its way’ by bedring its share of

iach tax burdens, * * * and that in consequence not

every local tax laid upon gross receipts slerived. from

participation in interstate commerce 1s forbidden. Sée

Western Live :Stock v. Bureau of Revenue, supra, and

cases cited. But ‘it-is enough for present purposes

that under the commerce clause * * * State taxation,

whatever¢its form, is- precluded if it: discriminates

against ee or undertakes, to lay a

privilege tax measured by gross receipts derived from

artivities in such ecommerce which extend beyond the

territorial limits of the taxing stafe. Such a tax, at

‘* least when. not apportioned te the activities carried

on within the state * *“* burden. she commerce _in the

sani manner and to the same extent as if the exae-

tion were for the privilege-of éngaging in interstate

commerce and would, if sustained, expose it to multiple -

+ tax burdens, each measured: by the entire amount of

the’commerce, to whieh local eommerce-¥€ not Subject.”

The law as thus laid down represents the repeatedly -

expressed views of this Court in‘an unbroken line: of de¢i-

sions and opinions in later cases from Western Live Stock

_xv. Bureau of Revenue, supra, -in 1938, to |. ternational *

Harvester Company vy. Dept. of Treasury, supra, in 194.

Whe holding of the Puget Sound case is utterly irregonel-

able with the law as established by these later cases, In

this connéction reference is #lso made to comments om

ethe Puget Sound case in Lockuart, Gross Receipts Taxes

on Interstate Transportation and Communication, 57 Harv.»

1... Rey. 40 (1943), 64-65, 82. - |

% ee ; e ) .

‘ ‘ @ *

Puget Sound. case is in effect overruled by the later

cases relied on by petitioners _ ,

The PugeP Sound case, by contrast, has never. been

relied upon by this Court as“authority for any of its sub-

s@juent decisions, and has in effect been overruled by-

the later-cases. Its present ineffective statps as prece-

lent is markedly illustrated by the treatment accorded it

_by this Court in-Gwin, White & Prince, Inc. v. Henneford,

upra, which involved -the Very same Washington tax

Washington Laws 1935,%c. 180) as had beerkbefore this

Court in the Puget Sound case. * Moreover, the taxpayer in

the Gwin, White a& Prince ease, a commany which-mar- -

seted in other States and foreign countries-fruit grown by

Washington growers, was engaged, as was the Puget. Sound

Stevedoring Company, in a service “in aid of the shipment

and sale ob merchandise in that finterstate ] commer¢e * * *

which] services are within the protection of the commerce

dause * * *.” (305 U.S. at p. 437). rie ae |

The taxpayer in that case relied upon and cited the

Puget Sound case. ‘This Court in the Gwin, While &

Prince éawe, in reaching the: same result of invalidity as

in the Puget Sound case, did‘ not in its opinion even men-

wn the Puget Sound case. That the Puget Sound ‘ease

¥as rejerted’ as authogity by this Court is further indi-

rated by the fact that Justices Butter and McReynotps,

who concurr¢d i the result of, invalidity in .the’ Goin,

Witte & Prtace case, based their conclusion’ upon the

loctrines Of the Puget Sound éase, and cited that case.

However, ag-stated, the majority of this Court, without -

nentioinng the Puget Sound case, cited and relied upon the

‘vetrines of the cases upon which lise biee herein rely.

The only inference that can be drawn from these facts’

's that this Court rejected the Puget Sond case as con-

ehiling authonity, and sated adopted and applied to the.

‘win, White & Prince“case, the principles and. rationale

‘had eriuneiated and applied in the earlier Western Lire

‘Mock and Adams Mfq Co. cases, supra. It has repeatedly |

lone xo in other cases décided since that time. McGoldrick

16 SA

v. Berwind- White Coal Mining Co., supra; Dept of Treasiy

v. Ingram-ftichardson Mfy: Co., supra; Allied Mills, Ine. v.

Dept. of Treasury, supra; International Harvester Co. \.

Dept. of Treasury, supra,. Under the cireumstances the

Puget Sound case hag been in effect overruled.

The only other question ‘remaining is whether the tax

in the case at bar meets the test of validity undér the

Commerce Clause as laid down in the Western Live Stock

and the other cases which petitioners cite’and rely upon.

POINT II - °

The New York City general business tax as applied —

- to respondent’s receipts is not barred by the Commerce

Clause, since it is not an unconstitutional burden on

interstate commerce. ;

Under he's recent cases cited at, page 12, supra, where-

in this Court set forth the applicable principles for deter-

mining the validity of Sta#® gross receipts taxes under the

Commerce Clause, it is settled that: (1) persons doing

business in, or connected with. interstate or foreign con-

merge, “are Rot immune from all taxés on their gross

ae (2) such taxes are invalid’ under the Commprce

Clause) only if t iscriminate against interstate com-

merce or result in the possibility of cumulative . multiple,

ftax burdens merely because interstate business is being

done; (3) the possibility of ¢umulative- multiple tax bur-

dens is aypided | as to such taxes by basing the tax either

on the receipts from the particular activity locally carried

on or, if the activity extends bevond ‘State ‘lines, upon a.

portion of the over-all gross receipts determined by for-

mula to be commensurate with the activity loeally carri

on. : ,

On the basis of these principles the tax at baie is clearly ~

valid. It is not “diseriminatofy; it is properly commen

“

‘possibility of

arate With-a tivity carried on

umulative re tdx burdens.

There is no diseriming

The tax herd involved: is. a general businessi tax. Tt

applies without ¢ a Spe to,all persons who are carry-

ing on business within'the City.. The same-rate of tax is

imposed upon all persons and the same tax base—gross.

receipts—is used for all persons. .The tax does not apply

mly to persons engaged: im interstate and foreign, com-

merce, nor does it apply to such persons at ‘a higher rate

or in any respect more onerously than to persons engaged

in purely domestic business. The laék of discriminatory

intent and the scrupulous regard for the right of persons

engaged in interstate and foreign commer¢g is manifested

by the special_provision requiring that where taxation of»

a receipt in its\ entirety is- barred by the Constitution, a

proper apportionment shall be made. There ean be no

question, therefore, that thére is no discrimination either

is against persons engaged in’ foreign and interstate com-

merce gmerally or ee st this taxpayer in particular.

F So

The tax is comménsurate with the taxpayer's *

has local activity

rhe receipts here in question arise out of the respond-

ent’s wholly local business: activity. No part thereof is

farned, or contributed to by any activity outside the City.

Hence, no allocation or “Rpportionment i is -reqnired to avoid

the possibility of. undue burden or multiple taxation, for

it is clear that these receipts properly reflect the activity,

and only the activity carried on within thé City of New

York., A tax, ther efore, based upon these receipts is obvi-

| ously commensurate with the. respondent’s local activity

| Within the City of New York and cannot in any way he

ascribed to, or regarded ‘as being reflective of, any extra-_

city activity. The facet that this activity is in interstate

“inerce or that the receipts arise out of participation

ally ; nl there is no.

°o

‘capable, in point of substance, of being imposed &

‘or added to

oe 18

in interstate commerce does:not bar thé tax. See cases

cited page 12, supra. See also quotation from Guin

’

White & Prince, Inc. vy. Henneford, supra, at page 14,

supra, “liven interstate business’ must pay its way”

Western Live Stock v. Bureau of Revenue, supra, p. 254:

Gwin, White CZ Pr nee, Ine. v. Henneford, supra, P- 458.

There is no possibility of an undue or multiple

burden on interstate. commerce

‘The tax here involved does not impose any affirmative

impediment. to‘ the ‘conduct ‘of interstate business. The

carrying on’ of such business is not conditioned upon the

by the law. .Faiiure to pay the tax does not .bar a person

from earrying on his business or froma engaging in busi-

ness activity. within the City. ee 2

In the @ase at bar there. is no. iossibility of a burden

of cumulative multiple taxation. _ The respondent is en-

no place of busingss elsewhere. Jt has no- Property else.

where. The services from which the. receipts fcht to

Jimits of the City. It.is, therefore, inrpossible for the tax

Tere involved to be a burden “of such a nature as te be

a . *

with equal sright by. every, state which

thecommerce touches, merely because intérstate commerce

is heing done, so that ¢without the _protéction of the com-

merce clause it [taxpaye rl w ould bear cumulative burden -

not ‘imposed on local commerce” (Wrstern Live Stocle

Bureau of Revenue, supra, pp. 255-256).

Unless the tax at bar is sustained, this responde nt an

persons similarly situatéd who engage or narticipate locally G

in activities in interstate commerce will be absolved from

payment of any tax on gross receipts. The effect of this

of course, will be to impose a heavier tax burden upon.

persons engaged in local business not regarded as in

A Lge:

payment of the tax. No licensing-requirement is‘ imposed |

gaged in business only in the City of, New York. It has

“* be taxed arise are performed wholly within the territorial -

: 19

pnterstate. conmtee, though the benefits, advantages and.

services afforded dy the City are enjoyed équally by both

groups of “persons:’ While the Commerce Clause may be

used to prevent the imposition of, undue and multiple bur- |

dens upon persons engaged in interstate commerce, it’ is

surély not intended to absolve*such persons from paying .

a just share of the cost of local government and to impose.

a heavier hurden upon persons not engaged | in oe a)

commerce, :

CONCLUSION

‘The ealdavisen Clause does not requive that. gross re-

ceipts from interstate commerce be exempt trom local taxes.

Such taxes are permissible if based upon gross ‘receipts

arising out of an activity ¢ rried 0 on wholly within the tax-

ing jurisdiction | or, wel the activity extends beyond

State lines, upon stich part of. the receipts as is fairly

soumensurate with the activity locally. carried on, Such

a tax, either on gross receipts resulting j from a wholly local

activity, or from an alloeable port jon of the gross recefpts

if thie activity extends heyond State lines, is not an undue

burden on interstate commerce, since it cannot in i point, of

substance he imposed by any other State.

The tax-at bar is properly commensurate with a wholly

local activity andeis one which cannot be duplicated ‘in any

other jurisdiction. It is one that-is imposed without dis.

—(rimination of any kind. Therefore, this tax is not barred

bx the C ommerce Clause. . ts

Mereover, persons engaged in interstate commerce should

he required ‘to pay their way: by ‘contributing their share

toward, the cost of loeal government, whose benefits and

Services ‘they enjoy. Local business men not in ‘interstate

commerce should not he forced to bear extra’ tax -burdens

for henefits and services which they enjoy on a parity with

their fellow business men engaged,in interstate commerce,

i J eee ; nr

20 ;

ee | —

because the‘latter are absolved from the payment of" their

share of the cost of Brovaiine such benefits and Services.

The petition for certiorari shoutd be granted.

Dated: New York,” N. y.

October 17, @*-

: Respect fully submitted,

IGNATIUS M. WILKINSON,

' a : - + Isaac C. Donner,

Counsel for Petitioners.

Harry Karz, | \

of Counsel,

APPENDIX AZ *

Provisions of Local Law

LOCAL LAWS OF THE (€ ITY OF NEW YORK

Fr OR THE Yeni 4040

A Loca Law to amend the administrative eode of the city

_ of New York, in relation to raising revenue for the pur-

pose of relieving the people of the city of New York

from the hardships and suffering caused by unemploy-

ment and the e fects: thereof on the publit health, and’,

welfare, by re

privilege of carrying on or exercising, for gain or profit,

within the eify of New York, any trade,.business, pro-

fession, vofation, commercial activity or financial

business, gr of making sales to persons within such

city, and/ extending the time during which such tax

shall be imposed.

Became a law — 29, 1940, With the ako oval of the

May or, Passed by the local legislative body. of | the city of

New York.

Re it enacted by the Council as follows :.

Section 1. Title. R of chapter forty-one of the administra-_

tive code of ine city of New York, as added by local law

nunber- one hundred three for the year’ ninetéen hundred

thirty-nine, is hereby amended to read as follows:

. i

enacting and” imposing a tax upon the. ~

“and stocks, mdgetary-metals, factors, and commission mer-

. fact, dealers in merehandise where the spread or difference:

ever, but shall not include receipts from the sales, services

. a]

; *

22 ,

ria . 7

: * Appendix A

; : a”

f | TIT mR

Gesenan Business ann Financ JAL Tax

- .

§R4L-1.0. Definitions. When used in thig title the fol. .

ae terms shall mean or inelude: oner

1. “Person.” Includes an individual, partnership,-

society, association, joint stock ¢ompany, Corporation,

estate, receiver, trustee, assignee, referee or any other per-

son acting in a fiduciary or representative capacity, whether

appointed by w court or otherwise, and any combination of

individuals carrying on or exercising for gain any trade,

business, profession, v ocation, or pemeaa” salon d within

the city.

”. “Financial business.” The services and transactions

of ‘private banks, private bankers, dealers and brokers in

monty, credits, commercial paper, bonds, notes, securities

chants, and where the comptroller shall so determine as a

hetwean the cost of goods sold and the sale price is

analogots—to or in the nature of a commission and does-

not in any event exceed thr®e percentum of the cost of

goods sold, and such determination of facet by the comp

trotler r shall be final. .

3. “Receipts.” The gross receipts received in, orb

reason of any sale made or services rendered or commercial

or business transaction had in the city, including cash,

credits dnd property of any kind or nature, without an)

deductions therefrom onaccount of the cost of the property

sald, the cost of materials used, labor or service or other

cost, interest or discount paid, or any other expense whiatse-

or transactions hereinaftersin <chednle A specified:

Appendix A +

For the purpose of determining receipts from the*busi-

vss of insurance, such receipts shall be taken to mean

receipts from premiums received from risks in the eity,

whether by mutual or stock companies, domestic or foreign,

without any deductions therefrom for any costgor expense

whatsoever. « The comptroller shaJl determine from such

data as he shall require fr@m insurance companies subject

‘0 the provisions of this title, the amount of such receipts

and shall ascertain the amount of the tax in accordance with

such determination. Fhe business of insurance shall not

i deemed to be a financial business,

Bia,

. ScHEDULE A ~

‘Receipts of the city and state of New York and of the

‘government of the United States, only in so ‘far as the re-’

veipts of the United States are immune from local taxation

inder the constitution of the United States.

Receipts of charitable and religious corporations OF asso-

ations whose ifcome is exempted from taxatic » under the

—aws ‘of. the stafe of New York. _ 3

Receipts of natienal banking’ tissociations, banks, trust

coupanies und mutual say ings banks subject to the provi.

‘ions of articles three, five, six and seven of the banking law

of the state of New York,

_ Receipts of co-operative corporations organized. undee the

provisions of the co-operative corporations laws of the state

of New York, or agricultural co-operatives of ganized under

the ¢ authority of the federal government.

Receipts from sales of .real estate and/or re nts def ved

‘rom real estate.

Reeeipts-of public utility corporations, if otherwise taxed

oh gross income or receipts ‘pursuant to the authority

stanted by chapter eight hundred seventy-three of the laws

H nineteen hundred thirty- -four, as amended,

’ 24

Appendix A

Receipts of a non-profit memberghip corporation for t®

purpose of holding a world’s fair and confining its opera-

tions solely to preparing for and conducting such fair.

Wages and salaries of individuals.

4. “Gross income.” The total amount of receipts ofa

person engaged in a ite business, excluding the cost

of property sold, or moneys or credits received in repay-

ment of advances, credits and loans, but not to exceed the

principal amount theréof and excluding deposits.

5.. “Exercising any. profession, vocation, trade, businets

or commercial activity.”

rendered by an individual for a wage or salary. —

Lod | ’ : of fe °

4. “Treasurer”. The treasurer of ‘the city.

| ; Ate & 3

§R41-2.0. Imposition of tax. a. For the privilege of

carrying on or exercising for gain or profit within the city

any trade, business, profession, vocation of commercial

‘activity other than a financial business, or, of making sales

to persons within such city, for each of the periods of one

year, or any part thereof, beginning on July first of the

years nineteen hundred thirty-nine and | nineteen - hundred

forty, every person shall pay an excise tax which shall be

equal to one-tenth of one percentum upon al) receipts re-

ceived in and/or allocable to the city from such profession,

vocation, trade, business or commercial -activity exercised

or. carried on by him during. the calendar year in whieh

such period shall commence, or as provided itt subdivision

c hereof; and for the privilege of carrying on. any financial!

business, as defined in subdivision two of section R41-1!

of this title, for gain-or profit within the city for each of

the periods of one year, or any part thereof, beginning or

July first of the years nineteen hundred thirty-nine and

nineteen hundred forty, every person shall pay an excis’

Does not include labor or services

Carn. ‘

tax which shall be equal to one- fifth of one pereentum upon

ll gross income received in ad /o alloeable to the’ city

received from such financial he carried, on. by him

in the city during the calendar Year i in which such périoed

shall commence, .or as_ providéd in subdivision eahereo!.

liowever, there didi he hd tax imposed on those trades,

iusinesses, professions, ,vecations-or commercial activities

where the gross receipts do not exceed ten: thousand dollars

perannum, and no return need be filed. She

h. Where a-rec eipt in its entirety cannot be subjected ty

the tax’ imposed by this title by reason of the provisions of

the constitution of the United States or any other provision

flaw, the comptroller shall establish rules and regulations

andor methods of allocation and evaluation to the end that -

only that part of such receipt which is property attributable

ind allocable to the doing of businéss in the city shall be

wwe hereunder, The comptroller’ nay make such alloca-.

on, with due regard to the nature of the business con-

ered; ony the basis of mileage, division. of. the receipt

va tes the number of jur isdictions in which it may be

‘axed, the ratio of the value of the property or assets of the

‘axpayer owned and situated in the city to the total prop.

erty or assets of the taxpayer wherever owned arid sRuated

and/or any other method or methods of allocation other

than the foregoing caletlated to effect a fait.and proper

location in accordance with the purposes of this provision,

« Ifa person subject to the tax finposed by this title was

not engaged in carrying on a profession, vocation, trade,

ousiness or commercial activity or financial business in the.

fty during the whole of the calendar year referred to .in

stbdivision qof this section, he shall pay the tax impose

'y this title Yneasured by his receipts or gress income,

“as the case may be, during the period of one vear from the

late when he became so engaged; and.if such person shall

wot have heen s#engaged f& Zin entire vear prior to June

%% \ ir

{ - Appendix A

thirtieth of the year in which the tax itnposed by this title

becomes due and payable, then me Sured by his receipts

or gross income fot the period ‘ring whieh he was so

eagaged, spe’

d. If any persoweliable for the tax after July first, nine-

. teen hundred thirty-nine, acquired the assets or. franchises

of, or was merged or consolidated with ginother person, the

person liable for the tax shall report as its receipts or gross

income: by which the tax is to be measured, the receipts or

* gros#income of such-other person together with its own re-

ceipts or gross income as provided in this section.

-§R41-3.0,)..Presumption and burden of proof. [or_the

purpose of the proper adininistration of this title and-to

p»event evasion of the tax hereby imposed, it shall be pre-

sumed that_all receipts are a proper, measure of the tar

. until the cont?ary is established, and the burden of ,proving

that any payment or consideration received by any perso

subject to the tax hereby imposed Was not received in or by -

reason of a sale made or service ‘rendered or transaction

had fR the city shall be upon the person who réceived it.

+ §$R4t-4.0, Filing of returns. lvery person subject to tax

under this title shall on or before the fifteenth day of June

of the vears ib which the one-year periods.referred to i0

sulylivision a of section R41-2.0 of this tithe shali end, file

&@ return under oath with the treasure except that any.

person required to file a return for a period beyond th

first day of May of any such yedr may file such return on 0!

p before the first'day of August thereof. The comptroller.

he deems it necessary to insure the payment, of thie te

hereby imposed, may require returns of receipts from othe

persons. The forms ‘of such returns shall be Breseribed br

the comptroller and shall contain such informatjon as |

—inay deem necessar¥ for the proper administratipn of th:

title; and the comptroNersr treasurer or their di@y author

apo e ed a

aaa .

Appendix A

* ©’

zed agents or.employees shall be empowered to. requir

upplemental returns and to inspect the books and records’

if any person as defined in this title pertaining to his re-

wipts. Whenever the treasurer shall. require supplemental -

returns, he shall promptly notify the comptroller thereof,

Si41-5.0. Payment of tax. At the time of filing a return

as required by this tifle each person shall: pay to the treas-

irer fWe tax imposed by this title. Such tax shall be due

and payable on the last day on which such return is required

tobe filed, Without regard to whether a return is filed or.

whether the return whic ‘his filed correc ‘thy shiows the amount

of the taxf\due. - ee °.

SRA1-6.0, Determination of tax. If a return required by

. this title is not filed or if a return when filed is incorrect

ov insufficient, and the maker fails te file a corrected or

sufficient return within twenty days after the same nay be

equired by netiee from the comptroller and teagQyrer they

‘hall determine the amount of the tax due from Queh in-

nlices, such; as the. number of employees of the person

“nm orned, rentals’ paid by him, his stock on hand and or

thee factors, Notice of such dete rminatién shall be given

letermination shall finally and irrevocably fix the tax unlexs .

‘ey person against whom it is ‘assessed shall, within thirty

lays, apply to the comptrotler for a hearing on suely deter.

uination, ar unless the comp roller and treasurer shall of

‘heir own motion redeterming such tax. After such hearing

‘he comptroller shall give pétice of his decision to the per-

n litle for the tax. Thé determination. of the comptroller

shall he jewable fo of, illegality, unconstitutionalitv

re a og a proceeding under

or ittiy® thor reas

article seventy-eigdit of the Civil Practice Act if instituted

‘thin thirty daws after the giving of the notice of Reh.

mation as may he obtainalde or on the basis of external.

Rous

. IQ

, * @

Appendix A

unless the amount of anv tax sought to be reviewed with

interest and penalties thereon, if any, shall have first been

deposited with the treasurer and an undertaking filed with

the comptroller in such amount and with such sureties asa

justice of the Supreme Court shall approve, to the effert

that if sueh proceeding be- dismissed or the tax confirmed,

the petitioner will pay all costs and charges: Which may

acerue in the las ik tse of the proceedings.

§R41-7.0, Refunds. In the ‘tedin herein provided the

treasurer upon the order of the comptroller shall refund

determination. Such proceeding shall not be instituted,

any tax, interest-or-penalty erroneously, illegally or-wicon-

stitutionally collected by or paid to him, un ler protest in

writing, stating in detail the ground or grounds of the

protest, if application to the comptrotter therefor shall be

made within one year from the payment thereof. For like

cause and within the same’ period a refund may, be so made

on the initiative and order of the comptrolleg,. ‘Whenever

-a réfund is made by the treasurer, pursuant tothe order.

~of the comptroller on the comptroller’s own initiative «

after a hearing by the comptroller as herein. provided, the

comptroller shall State his reasons for the refund in w riting.

A person shall not be entitled to a hearing in connection

‘with such application for a refund if he has already had

a hearing or fad been given the opportunity of a, hearing

ax provided in section R41-6.0 of this title. No refund shal!

termination of thé’ comptroller as provided -in section

R41-6.0 of this titte, unless the compt rofte r, after a hearing

as in said séetian provided, or of his’ own motion, shall

have reduced the tax or penalty, or it shall have been estab-

lished in,a’proceeding, pursuant to article-sey enty-eighto!

the Civil Practice Act that such dete ‘rmination was errone-

ous, illegal, wneonstitutional or otherwise : improper, if

» Which event-a.refund with interest shall be made as pro

. »

he made of a tax, interest or'penalty paid pursuant. to a de

. ‘ ° é *

Ze 99 - . R

* | Appeudix A

vided upon the determination of such proceeding. An ap-

‘wrovided shall be deemed an application for a revision of

any tax, interest oF penalty complained vf and the comp:

‘roller shall ree¢ive evidence with respect thereto. After

waking his determination the comptroller shall give notice

‘hereof to the person interested who shall be entitled to

maintain a proceeding under arti¢le seventy-eight of the

Civil Practice Act to review such determination if insti-

tute! within thirty davs after’ such determination and

m undertaking shall first, be filed with the comptroller in

‘wh amount and with sueh sureties as a justiee of the

Supreme Court shall approve, to the effect that if such

order be dismissed or the tax confirmed, the petitioner

will pav all casts and charges which may accrue in the

nrosecution of the certiorari progeeding. ; ‘edie

SR4i-8.0. Reserves. In cases where the taxpayer has

paid any tax, interest or penalty under written protest

tating in detail the ground oer grounds therefor, has npplied/

‘or a refund and has instituted proceedings under article

eventy-eight of the Civil Practice Act to review a dete

mination adverse to-hin on-his application for vefund™o: or

jas deposited thé amount of tax assessed in connection with

oroceedings under section R41-6.0 of this title, the comip-

Toller shall set up appropriate reserves to meet any deci-

‘ion adverse to the city. >

‘T41-9.0, Remedies exclusive. The remedies provided

WY sections R41-6.0 and R41-7.0 of this. title shall be the

‘xelusiye remedies available -to ary person for the r revie w

if tax liability imposed by this title; and no determination

proposed determination of tax or determination on an

application for refund shall be enjoined o gr reviewed by an

«tion for declaratory judgment, an actién for money hal

ind received,-or by any legal or equitable action. or pro-

lication to the comptroller for%a-refund made as herein .

: oe \

a eater

Appendix A. \

ceeding other than, proceedings undervarticle seventy- eight

of the Civil Préetice, Act; provided, however, that a tax-

payer iiay proceed by declaratory judgment. if he insti:

tutes suit within thirty days after a’ deficiency assessment

is made and pays: tlie amount of the deficiency assessment

to the treasurer prior to the institution of such suit and

posts a hond Oy costs as provided i in section R41-6.0 of this

title.

§R41-10.0. Proceedings to recover tax. a. Whenever any

verson shall fail to pay any tax, penalty, or interest imposed

by this title as therein provided, the corporation counsel

shall, upon the request of the comptroller or treasurer,

bring,wr action to enforce payment by the taxpayer, who

shall be personally liable for the same. If, however, the

treasurer in his discretion believes that a taxpayer subject

to the. provision of this title or of articles eight. to twelve

inclusive of title K dt chapter forty-one of the code is about

“10 “ease businexsleave the state er remove or dissipate

the assets out 6f which the tax, interest or penalties: mig!i!

he’ satisfied’and thal any such tax, interest or penalty will

not be paid when due, he may declare such tax, interest or

penalty to beimmediately due and payable and may issue

yu wgrrant hmmedrately. =

—*

ea Yaw. se additional or alternative remedy the t treasurer,’

‘may issue'a warrant, directed to the shey, any county

‘within the city, commanding hith to bx “upon and sell the

7. real and pe tsonal property of sugf person whieh tuay le

found® within his county, for the payment of the : aurnopitt-

thereof, with any penalties, interest and the cost of exect!

ing the warrant and to return such warrant to the treasure!

and to pay him the money collected by virtue thereof within .

sixty days after the receipt of such warrant. The sheri®

shall within five days after,the receipt of the warrant, flr

with the clerk of his count¥ a copy thereof and: thereupe™

such elerk shall enter in the judgment doeket the namé ¢

the person mentioned in the warrant and the amount of the

“* 3

ae 2s.

Appendix A ~ .

‘ax, penalties and interest for which the warrant is isu .'

and the date when such copy ts filed, Thereupon the amowuit

if such wefant so docketed shall become a lien upon the

‘itle to and interest in real and personal property of the

person, against whom the svarrant is issued. - 7 The sheriti

hall then ‘proceed upon the warrant in the same mane,

and with like effeet as thai provided by law in respett lo

wxecutions against property upon judgments of a court oF

record, and for services in executing the warrant he sta!

cutitied to the same fees\which he may collect in the same

ike tertas, feree and effect may be issued aid directed to

any officer ra

nthe execution thereof such officer or employeeshall have

ll the power conferred by law upon sheriffs, but lie shall be-

titled to no fee or compensation in excéss.of the actual

penses paid in the performance of such duty. Tf a war-

rant is returned. not satisfied in full, the ‘treastirer Nav

‘rom time to time issue new warrants arid shall ‘also hake

‘he same remedies tq enforce the amount due thereunder ».

f the Gt® had recovered judgment therefor and execution

theré on had been returned ‘unsatisfied. :

/ RALALO. General powers of the comptroller. [In acdkdi-

‘lan to the powe ‘ky granted to the comptroller in this title,

is Mereby authorized and empowered :

.l.> To make, adopt.and amend rules and regulations ap

propri: ite to the carrying out of thisAitle and the purposes

‘hereof :

.. To request ‘informatio? from the tax commission,

‘uperintendent of banks, superintendent of insurance and

ther avencties of the state of New York or treasury depart

wnt of the United States, relative to any person, aml to

ord information.to such tax-commission or such treasury

‘part thent relative to any person, any other provision in

‘is title to the contrary notwithstanding;

sé

udtuner,. In the diseretion of the treasurer a warrant of4

imployee of the department of finance, and

a Y

+ + Appendix A : Esa 2

- 3.- To extend, for cause, shown, the time -for filing any

return for a period | not-exceeding thirty. days; and, in his

‘discretion, ‘to remit penalfies, but not interest at the rate

of six per cent per annum; and to compromise disputed

Ae latms i in connection with the taxes hereby imposed;

* afte

Mise

“~

tie ae m1 -To require all persons doing buainess in the city to

“keep such records as he. may prescribe ; eae 9:

5. - Fo delegate his functions hereundef 4 to a deputy cguip-

troller or other employee or employees of the coinptroller's

office and, with the consent of the treasurer, to the treasurer

or ‘employ Ce8 of the eh of finance; :

‘« To dete ‘iain

sonatings ed y ey agtisity ah shall beh in ‘hohe or in at |

classified ay | business or otherwise; and in case

_any trade, busines +4 mpro ession, vocation. or commercial

computing the tax hereunde T “pen

vith sue ‘h classification ;

7. -To prescribe methods for deterfnining the amount of

receipts and/or gross income received by reason of any

sale made or service rendered or commercial or business

transaction had; - ‘ :

8. To prescribe methods for determining allocations of

receipts to the city. eVaay

41-120, General powers of the treasurer. In addition

to the powers granted to the treasurer in this title he i

iereby authorized and empowered:

1. To delegate his functions hereunder to_ ‘a depsty

treasnrer or other employee or elployées of the departinett

of finance; and, wath the consent, of the comptroller, to the

comptroller or any of his employees a

a ppendix A

To extend, for canse show n, the time of filing any re-

urn for a period not exceeding thirty days: gf in such

vent. promptly to notify the comptroller of any extensions;

3, To. request information from the- tax commission,

uperintendent of banks, superintendent of insurance and

ither agencies of the state of New York and of agencies

of the U nited States relative to any person; and to afford:

nformation to the tax commission and treasury depart-

uent relative to any person, any other provision of this title

7 the contrary seh cae 7 : :

R41-13 6. Administration of oaths and compelling testi-

mony. a. The comptroller, or: treasurer or ‘his’ employee

july designated. and authorized by them shall have power’

to sduinivter oaths and take affidavits, in relation to any

matter or proceeding in the exercise of their powers and

iuties under this title. The comptroller or treasurer shall

‘lave power to subpoena and require the attendance of wit-

nesses and the production of books, papers and documents

‘0 secure information pertinent to the performance of his

luties-hereunder and of the enforcement of this title, and

‘0 examine them in. relation thereto, and to issue commis.

‘ions for ‘the examination of witnesses who are, out of the:

tate or unable,to atte nd before him or excused from attend.

ange, ‘ f

A justice ofthe Supreme C ourt e¥ther tn court or at

adie shall have power summarily’ fo enforce by proper

iroceedings the attendance and testimony of witnesses and

‘he production and examination of books, papers and doeu-.

vents called for hy the subpoena of, the comptroller or

‘Teasurer hereunder.

* Any person who shall refuse to testif¥ or to produce

moks or records or whovshall testify falsely ic any material

matter pending before the comptroller or treasurer here-

inder Shall be guilty of a misdemeanor, and ptinishment

- ° e

DM Es

Agpeene A

for which shall be of a fine of not more thee one thousand

doles or iimprisompent for not more than one year, or

hoth shch fine and imprisonment.

d, The oficers who serve the comptroller’s or treasurer's

summons_or subpoena hereunder and witnesses attending

in response thereto shall’ be entitled to the amie fees ds are

allowed to officers and witnesses in civil cases in courts of

record, exeept as herein. otherwise provided, Such officers

shall he the sheriffs of the’ vaunties w ithin thee ity, and their

duly appointed deputies. oN

“

™~,

§R41-14.0. Penalties and interest. a-Any person failing

to file'a return or to pay over any tax to™the treasurer

within the time required by this title shall be suljeet toa

penalty of five pereentum of the amount of tax due, plus

interest at the rate of one percentum of such tax for each

month of deday or fraction thereof excepting the first month,

Otter such return was required to be filed or such tax be-

comes due; but the comptretler, if satisfied that the delay

was excusable, may remit all or any part of such penalty,

Aut not interest at the rate of six percentuim per annum

Such penaity shall be paid and disposed of in the same

-Imanner as other revenues from this title. Unpaid penalties

and interest may be enforced in tlie same mariner as the tax’

; imposed by this title.

bh. Any person and gy officer of a corporation or (-

Partnership filing or causing to be tiled any return, certili-

cates affidavit or statement required or authorized by this

‘title which is wilfully false-and ‘any. person who shall fail

‘to file a return as required under this title, and ed

of any corporationsehich shall so fail, and any perdén and

any officer of. a corporation failing to keep the records

required by subdivision four of section, R41-11.0 of this title

shall be guilty of a misde aneanor, punishment for which

shall be a fine of not more than one thousand dollars or

Appendix A

mprisonment for not more than one year, or both such

ine and imprisonment. The certificate of the comptrolier

ir treasurer to the effect that a tax has not been paid, that

ireturn has not been filed, or that information has not been

applied pursuant to the provisions of. this tithe shall tbe

rorima facie evidence thereof,

“a ? 2 ed

sna 15.0. Notices and limitations of ‘time. 1. Any

iotice authorized or required under the provisions of this

itle may be given by mailing the same ta the p&rson for

‘hom it is intendéd in a postpaid envelope addressed to

sich person at the address given in the last return filed by,

im pursuant to’ the provisions of this title or in any appli:

vation made by -him, or, if no return has been filed ¢

ipplication made, then to such address as may be ene

ible. ~The mailing of such notice shall bé, presumptive

widence of the ree eipt.6f the same by the person to whom

uldressed. Any perio® of time which is determined ac-

wording to the provisions yf this title by the giving of notice

chall commence to run from the date of-mailing of sueh

otive:

b. The provisions off the Civil Practice Act or any other

ww relative to limitations of time.for the enforcement of

‘civil remedy shall not/apply tu any proceeding or action

‘uken by the city to levy\appraise, asse&s, determine or en-

‘orce the eoHection of any tax, interest or penalty provided

i this title. Howeves exe ept inthe case of a wilfully false

fraudulent return with intent to evade the.tax, no assess-

‘nent of additional tax shall be made after the expiration”

{more than three -yéars. from the date of ‘the filing of a

turn, provided? Yhat where no Fetyirn has been filed fis

nrovided by lawAhe tax may be fassessed at any time. -

«.. Where, b

Ain for th

as Consente

‘fore the expiration of the period Prescribe:

ass@ssment_of an additional tax, 4 es et

lin writing that sne h. period he extendededhe

r 36

Appendix A

: *y :

mnount of such a&&tional tax dae may be determined at any

tilhe within such extended period. The period so extended

may be further extended by subsequent consents in writing

made before the expiration of the extended period.

“it shall be whlawful for t troller or treasurey or any

officer or employee of the comptroller’s ice depart.

ment of finance to divulge or make known in any manner

the receipts or any other information relating to the busi-

*- ness of a taxpayer contained in any return required under

this title. The officers charged with the custody of such

returns shall not be pequired to produce any of them or

evidence of anything contained in them in any action or

proceeding in any court; except on behalf of the state, the

‘ ¢ity or the comptroller or treasurer or on behalf of any

party to any action or proceeding under the provisions of.

this title when the returns or. facts shown thereby are

directly involved in such action or proceeding in either of

which events the court may require the production of, and

may admit in evidence, so much of said returns or wt the

fact shown thereby, as are pertinent to the action Sr pro-

ceeding and no more, Nothing herein shall be construed

to prohibit the delivery t6 a taxpayer or his duly authorized

representative of a certified copy of any return filed in

connection’ with his tax nor to prohibit the publication of

statistics so classified as to prevent the identification of

particular returns and the-items thereof, or the inspection

by the corporation counsel of the-city or other legal repre

sentatives of the city of the return of any taxpayer whe

shall bring action to set aside or review the tax based there

on, or against whom an action or proceeding has been in-

stituted for the collection of a tax or penalty.” Return:

“shall be preserved for three years and thereafter until th

comptroller orders them to be destroved.

Appendix A. |

\R41-17.0. Separability. If any provision of this title,

rthe application theres# to any person or cireumstances is,

eld invalid, the remainder of this title, and the application

‘such provisions to other persons or circumstances shal!

ot he affectetl thereby. ; 7 > os ?

‘R4I-18.0. Construction and enforcement. This title

hall be construed and enforced in conformity with chapter

ight hundred: seventy-three of the laws of nineteea hun-

red thiryfour “as amended, pursuant to Which it is en-

eted, ; : .

undred forty. .

’

YY haa

12. This Igcal jaw shall take effect July first, nineteen

’

ee ; r

APPENDIX B °

Provisions of State Enabling Act [ie

LAWS OF NEW YORK

: 1940 :

F CrHaptTer 244

Aw Act to amend chapter eight hundred and seventy-three

» Of the kaws of nineteen hundred. thirty- ‘four, re-entitled

by chapter six hundred and fifty-nine of the laws of

nineteen hundred thirty-nine, “An act to enable, tem-

-porarily, any city of the stat® having a population of

one million inhabitants or more to adcpt and amend

local laws, tmposing certain specified, types of taxes

which the legislature has or weuld have power and

authority to impose to relieve the people of any such

city from the hardships and suffering caused by w-

employment, to provide for the review of such taxes,

and to limit the application® of such local’ laws,” in

relation to authorizing/specified types of taxes for re-

lief and welfare and providing for the review thereof

“<’

Became a Jaw March 30, 1940, with the approval of the

Governor. Passed, on message of necessity, three-fifthss

heing present | |

Thx People-of the State of New York, represented iv

Senate and Assembly, do enact as follows:

Section 1. Seetions.one and two of chapter eight hundred

and seventy-three of the laws of nineteen hundred thirty.

four, re-entitled by chapter six hundred and fifty-nine ef

the laws of nineteen hundred-thirty-ine “An act to énable.

temporarily, any city of the state hating a population of

one million inhabitants or more to adopt and ame mal loca

laws, imposing certain specified types of taxes which the

levislature has or would have power and authority to itt

7 -

« 39 :

* ~ :

* P ; Apyendiv B ‘ oe ‘a

wse.to relieve’ the* people of any such city from the hard. :

hips and suffering caused by unemployment, to provide

or the review ee taxes, and to limit the application of

ach local laws,” as last°amended by chapter six hundred

nd. fifty-nine of the laws of nineteen hundred, thirty-nine,

ire he reby amended. 18. read as Follows :

SeMon 1. - Notwithstanding any other r provisions of law

» the contrary, any city of the statt Naving a population

f one tnillion inhahitants or more acting through ifs local

egislative bod@, i is hereby authorized and empowered until’

luly firgt, nineteen hundred forty-one to adopt and amend

ved! laws imposing in any such city any or all of the fol- .

owing types of taxes which the legislature has or would”

fave | power and authority to impose to relieve the people -

fany such city from the hardships and suffering caused

W unemployment? such taxes to be collected and adminis-

vred by thesfiseal officers of such city in, the same manner

sother taxes which are now collected and administered by

‘ach officers in accordance’ wrth the*charter or administra-

ive code of any such city: (a) Taxes on the use, sale;

Xchange, transfer; storage, wi hdrawal, retention, installa-

wn or license to use or consumy tangible persone propertt ; »

ther than, on‘ or after Jul¥Tirst, nineteen hundred forty,

ikarettes. aa

tb) Taxes on.the privilege of doing any business, engag-

ig in any trade, calling, occupation or profession owning,

iding or occupying any‘property; possessing or exercis-

ag any franchise or franchises; 6r on the Kross receipts

Mn sales to persons within such city, ace

Na Taxes on the sale or performance of services includ- Ss

utility serviees but excluding professional services,

The fax or. taxes imposed pursuant to" such ‘local Jaws ¢ ies

all be efLeetive onlyduring the period commencing when

ls act heecomes eff¢etive and ending July first, nineteen’

wo ., %

“

ga i Preemn *

hundred forty-one, or any portion of such period, A tax

impygeed hereunder shall lpuve ‘applic ation only within the

territorial limits of any such eity gind shall he in addition

to any and all other taxes, K .

This act shall not authorize the imposition of a tix on

‘incomes or upon the transfers of estates of deeeased per-

sons, or upon the gross income from the operation of ‘hotels,

multiple dwellings or office buildings by persons in “the

business of operating or leasing sleeping or parlor rail

road cars or of operating railroads other than street sur- «

face, rapid transit, subways and elevatad railroads, or wn

gross ine omes or gross operating incomes of persons Sub-

ject to taxation under the provisions ¢ of section one hundred

eighty-six-a of the tax law, except in accordance with the

provisions of sectien twenty-b of the Jeneral city law; or

ugon interest or dividends ‘received from a cobporation hy

‘a person referred to in this paragraph.

This‘act shall not authorize the imposition of a tax on

any transaction, originating and/or consummated outside

of the territérial limits of any such city, notwithstanding

that some act be necessarily performed with respect to such

transaction within sucly limits.

This act shall not authorize the imposition of a tax ona

non-resident Sf such city or on account of any transaction

by or with a non-resident of such city, except when inn posed

without discrimination as betwegn residents and non-resi-

dents, on account of tangible property actually located or

income earned, or trades, businesses or professions’ car .

ried on within suth city, or on account of transfers, retail

sales or other transactions actually made or consummated

Within such city by a non-resident while within ae ‘\) city.

A corporation shall not be deemed a non-resident Dy Beason

of the fae its principal place of btisiness i is not within the

° city.

Except as expressly otherwise in this act provided, noth «

ing herein contained shall limit or toh nt the imposition

o. .

¢ . . P we

"sabia ae ss

. Ippendi if

fa tax on gross@ncomes ora tax on gross receipts of per-

ons, firms and coyporations doing business in any such

atv. ‘ :

Ney such person, firm or corporation, however, shall be

abject to tlieNwaposition of more thar one tax by any such

ly on gross income or gross receipts for the privilege of

ving business under the provisions of this act.

A person who has a permanent place of abode without

wh city und lives more than seven months of the year out

Psuch city shall be deemed a non-resident within the mead

ag ‘of thix aect.. -

Anv final determination of the aniount ofany tax pay-

ble hereunder shall be reviewable for error, illegality or

“cneopstitutionality or any gther reason whatsoever, by

roceeding under article seve nty-eight of the civil ptactice e

«t if application thevefor is made to the supreme court

rithin thirty days after the giving of the notice of such

‘nal determination, provided, however, that any such -pro

weding yinder article seventy-eight of the civil practice

vt shall not be instituted urtless* the amount of any tax

vught to be reviewed, wifi such interest 3nd penalties

‘wereon as may be provided for by local law or rezulation,

vtall be first deposited: and an undertaking filed, in sueh

utount and with sueh sureties as a justice of the’ supreme

vurt shall approve to the effect that if such proceeding be

ssmissed or the tax confirmed. the petitioner will pay all

‘sts and charges which may acerue in the prosecution of

“ich proce eding. : -

‘Where any tax imposed hereunder shall have heen errone-

usly, iilegeally or uncofistitutionally collected an applica-

om tor the refund thereof duly made to the proper fiscal

heer or officers, and such officer or officers shall haye made

‘ deterusination denying such refund, such determination

Al he reviewable by a proceeding under article sevénts

‘ght of the civil — act, provided, however, that suc:

. . —_,

- 7

ee Py

: _ Appendix B

Set ptoceedin > is instituted wittin thirty days after the giving

* of the notiee of such denial, that a final determination of

‘tax due was not previously made, and that an undertaking

is filed with the proper fiscal officer or officers in such

“amount and with such sureti¥s as a justice of the supreme

egurt shall approve to the. effet that if sith proceeding be

~ (lismissed of the tax confirmed, the petitioner will pay all

costs and charges which may accrue ‘in the prosecution of

such proceeding, :

Except in the case of a wilfully false or fraudulent return

with intent to evade the tax, no assessment of additional

tax Shall be made with respect to taxes imposed -under Tocal

laws enacted prior to July jirst, nineteen hundred thirty-

eight, after July ising tama hundred forty-one, and

with respect to taxes Muposed under local laws enacted

_ Subsequent to July first, nineteen hundred thirty-eight, after

= -* the expiration of mote than three years from the date of

the filing of a return, provided however, that where no re

turn has been filed as provided by law the tax may he

assessed at any time. :

_§ ve Revenues resulting from the’ imposition ef tanes ite

thorized by this act shall be paid into the treasury of any

is — such city and shall not “be eredited or deposited ih the gen-.

e ‘al fund of any such-city, but shal! be deposited ina

‘s@parate bank account or accounts’and shall be available

And used solely and exclusively for paying the principal

amount of anv installment of principal and of interest dye

Sees tae during the aforesaid) period on account of , the ten-year

.y serial bonds sold to obtain moneys to pay for home relic

i and work relief in any such city in the month of November.

nineteen hundred thirty-three: for defraving the east of

ee eed collecting and administering such taxes, but not-in excess

of such cost, during the vear inmsediately preceding: and

for the relict purpos>s $yor whiclt such taxes have been it

- posed ‘ander the provisions of this act. 7

Appendix B

Notwithstanding the foregoing limitations, a stim not to

ceed four million five hundred thousand dollars may be

pended for old age assistance by any such city from the

‘July, nineteen hundred forty. ,

Such legislative body may authorize the S etteradiies of

iblic work for the relief purposes aforesaid to be paid for

ay he undertaken other than by contract by such municipal

poration, during the period aforesaid, through and un-

tits welfare or other department.

ig any provisions contained in any charter, or in any ‘gen-

“th special or local laws to the contrary, and notwithstand-

g any such provisions therein contained requiring such

ork as may be undertaken to be let by contract.

2. ‘This act shall take effect immediately.

ues imposed and collected hereunder prior to the first day .

tof the tax or taxes imposed under -this-act and which’

The provisions of this act shall be effective notwithstand- ;

APPENDIX © ©

7 Provisions of Article 2-B.of General City* Law

oe Act for Local Law No. 47 of 1941)

LAWS oF NEW YORK

1941 a

h ~ Chapter 199

Ay Act to amend the general city law, to enable certain

__| eities to impose and, collect taxes‘on certain businesses

Became a law. March 28, 1941, with the approval of the

| Governor. Passed, three-fifths being present

| fh \ : ‘

(The People of the State of New York, represented in

Senate and A ssembly, do enact as follows:

‘Section bs Chapter twenty- six of the taws of nineteen

hundred nine, entitled “An act in relation to cities, con

stituting chapter twenty-one of the consolidated laws,""is

hi reby enka by adding flereto a new article, to le.

artic ‘de two-B, to fead as follows:

ARTICLE 2-B | el

GENERAL Business AND Financia 2x AUTHORIZATION

Section 24-a. Ceftain Zink authorized fo: impoxe taxes

on certain businesses

24-b, Authority to impose other taxes ;*limita-

* tions.

i > Ne ee

J4-c¢. Revenues ;.disposition of,

“24\a. Certain cities authorized to impose taxes on cél-

tain businesses. Notwithstanding any other provisions 0!

‘aw te

rrvidlie

vinitel.

the contrary, any city having a population of one

or more, acting through its local legislative hody.

uly first, nineteen hundred forty-four, ghall have

45 y

, Appendis C

power to adopt and amend local laws imposing in.any such

ity a tax upon persons carrying on or exercising for. gain

w profit within such city, any trade, business, profession,

weation or commercial activity, other than a financial

usiness, or making Sales to persons within such city,

neasured by the gross receipts from such activities carried

mor sales made within the city, but not to exceed one-

‘wentieth of one per centum of such gross receipts, and |

pon persons carrying on within any such city, any finan-

‘ial business, measured by the gross income from such

inancial business earried on within such city , but not to

exceed one-tenth of. one per centum of such gross income.

In any such city in which ‘the functions of the chief fiseal

ificer are divided between two or more officials, any such

ocal law may assign the respective functions of each such

ificial in assessing and collecting the tax. Every such

oral law in terms. shall be, substantially, as follows:

CIENERAL BUSINESS AND FINANCIAL TAX

(Nork Here follows the prescribed model lau. which

‘ practically verbatim’ the provisions-of the local law

Title R of the Administrative Code .of the City of Neu

lork| set forth in Appendix A, pages 22 to 37, supra.)

4-b. Authority to impose other taxes; limitations.

Nothing in this artic le contained shall limit the power of

iy city to adopt or atregd local laws imposing tle t tax

ulthorized by section twenty-b of this chapter, as amended,

ot by chapter eight hundred seventy-three of the laws of

tineteen hundred thirty-four, as amendéd.

Nothing in this article contained shall be construed to

fer to or authorize a tax such as is authorized, to he im.

vosed by subdivision b of section one 6f chapter eight hun-

ired seventy-three of the laws of nineteen hundred thirty-

‘our, as last amended, upon (a) the gross income of per- |

“ns subject to the supervision of either division of the de-

‘artment of public seyvice; (b) the gross income of persons

‘hgaved in the business of operating or Teasing sleeping

46\

\ |

Appendin C - |

and parlor railroad ears or operating railroads other than”

street surface, rapid transit, subway and elevated rail-

roads; (¢) the gros operating income of persons engaged

in the business of operating ommibyses: with a carrying

capacity of more than seven persons who are not subject to

th® supervision of either division of the department or

public service; (d) the gross incomg of persons construct-

‘ing, owning, operating, managing or leasing electrical sub-

ways, conduits, duets, subsidiary congections or similar

structures and equipment upon, above, or under any publie

or private street, publie or private avenue, highway, publie

or private place, road or ground in any such city, through

which are run electrical conductors, either low or high ten-

sion, by itself, or by’ any person engaged in the business.

of affording telephonic or telegraphic communication for

hire or in the business 6f manufactnring, generating, dis-

tributing or transmitting electricity; or (e) the gross op-

erating income of persons not subject to the supervision of

either division of the departmeni of public service but

furnishing or selling gas, electricity, steam, water, refriger-

ation, telephony or telegraphy, or furnishing or selling gas,

electric, steam, water, refrigeration, telephone or telegraph §

service, or operating omnibuses (whether or not such op-

‘eration is on the public streets), regardless of whether-such &

furnishing or selling or operation constitutes the main ac-

tivity of such person or is merely incidental thereto. ;

\24-c. Revenues; disposition of. Revenues resulting

from the imposition of taxes authorized by this article

two-b shall be paid into the treasury of the city imposing

the same and may be credited to or deposited in the general

fund of such city. f ;

62. Article two-b of such chapter, as added by chapter =

live hundted and: two of the laws of nineteen hundred

twenty-one, as amended by chapter six hundred and fou

of the laws of nineteen hundred twenty-three is hereb? re

“numbered to be article two-c.

/ F ort ®

3. Thistaet shall take effect immediately.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.