# Petition for Writ of Certiorari — Joseph v. Carter & Weekes Stevedoring Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386450_0184%3A11 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1947 - **Citation:** 330 U.S. 422 ## Text >... - — ¢ 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 s 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 ...... X PAGE. 15 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 qs ? @.*=. . ¥ 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 é 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. o (b) -In ‘following the decision of this Court in Put P 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. ‘ ' 2 +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 [a ~~, 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, a 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, *. (c) Respondent and other persons engaged in wholly 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 ; “~ 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 — ae at 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 ) . 15 > ‘ ‘ @ * 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 Up 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 17 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 ae | ‘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: 4 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, r) 7 APPENDIX AZ * Provisions of Local Law % LOCAL LAWS OF THE (€ ITY OF NEW YORK Fr OR THE Yeni 4040 Ty 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. P ‘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 * x “* 3 ae 2s. Appendix A ~ . 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, s 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 "7 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 3 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 i ‘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. e? * 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 “ Ye ™~, §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 we ‘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 7 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 a “ 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 43 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- ; 44 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 we 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 co , 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.) pa 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. s --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386450_0184%3A11. Public record. Not legal advice.