The relator trust company received from the superintendent of banks a certificate of authorization to do business on the 6th day of June, 1901, and did actually commence the transaction of business on the 24th day of June, 1901. It had, therefore, been in business six days when its condition determined the amount of tax. No report was made August 1, 1901, and on the 30th day of that month the comptroller imposed the assessment and tax now under review.
The counsel for the relator insisted at our bar and in the courts below that the company was not liable to any tax for the year 1901, and that its first report to the comptroller was not due until August 1, 1902.
It was also argued that if the company was assessable at all, *Page 58 it was only on its capital stock and surplus spread over twelve months; that is on 6/365ths of $360,000, and the tax would be 6/365ths of $3,600.00, or $59.18.
It is conceded that the legislature did not provide in express terms for the apportionment that is now to be allowed by the decision of this court, but that it may be reasonably implied when seeking for its intention.
When taxes are imposed upon corporations to be computed upon the basis of the capital employed by it within the state, and the amount of that capital varies from time to time during the fiscal year, apportionment is of course necessary. (Tax Law, § 190.) In the imposition of a franchise tax no such situation is presented.
Section 187a, under which this tax is assessed, expressly states that it is for the privilege of exercising a corporate franchise or carrying on the business of the corporation. This tax is imposed upon the amount of the capital stock without regard to its actual value. It may be quoted at two or three times its par value, and yet the tax is assessed only upon the amount of the capital stock. (Tax Law, § 187a.)
In considering this new form of taxation affecting trust companies, we are to keep in mind that it is accompanied by several valuable concessions to them. Section 202 of the Tax Law, as amended by chapter 132, Laws of 1901, and chapter 172, Laws of 1902, provides that a trust company is not only released from taxation on its personal property for state purposes, but is exempt from assessment and taxation for all purposes. In addition to this is the provision that the holder of stock of a trust company is not liable to be taxed thereon.
In view of the nature of the tax and these valuable concessions, I am of opinion that the section under construction should be enforced as it stands and that there is no occasion to read into it the supposed intention of the legislature.
I vote for affirmance.
PARKER, Ch. J., O'BRIEN, HAIGHT, CULLEN and WERNER, JJ., concur with VANN, J.; BARTLETT, J., reads dissenting opinion.
Order reversed, etc. *Page 59