(dissenting). The sole question presented is whether a real estate corporation taxable under section 182 of the Tax Law, which, after November first (the beginning of the tax year for business corporations taxable under article 9-A) and before the following January first (the beginning of the tax year for real estate corporations taxable under section 182), engaged in activities requiring its classification thereafter as a business corporation, thereby becomes relieved of taxation under section 182 for the year beginning on said first day of January.
The system of annual taxation of corporations upon their franchises was inaugurated in this State in 1880.
In 1922 the Legislature adopted an amendment to the Tax Law, the effect of which was to move forward the beginning of the tax year, under section 182, from November first to January first. The effect of that amendment was also to reheve taxpayers under section 182 of the payment of any franchise tax for the two months’ period from November 1, 1922, to December 31, 1922.
Petitioner is a domestic corporation, organized under the laws of this State on September 17,1917, and at all times, prior to November 1, 1930, it was a real estate corporation, taxed under section 182 of the Tax Law.
On November 22, 1930, it purchased some shares of stock which took it out of the category of a real estate corporation and placed it under another section, article 9-A, so far as taxation was concerned.
The petitioner filed its annual report under section 182 for the tax year beginning January 1, 1931, and was assessed upon that return.
*420The Commission finally determined to affirm the assessment under section 182 as originally made. It is'that assessment that is now under review.
A real estate corporation which has paid its tax under section 182 for a given calendar year and which, prior to November first of that year, engaged in activities requiring its classification as a corporation under article 9-A, became subject to the 9-A tax for the year beginning November first of that year. Such a course results in a duplication of taxes for two months, but when the date was changed by the Legislature an escape of two months was enjoyed.
The petitioner’s contention is that, because it purchased the stock of the City Investing Company after, instead of before, November 1, 1930, it is not only relieved from paying the two taxes for the two-month period which corporations changing classification before November first are properly required to pay, but that it is relieved also of all taxation under either provision for the ten-month period from January 1, 1931, to November 1, 1931. ■ The tax, under section 182, like the tax under article 9-A, is a tax for the privilege of exercising corporate franchises, and not upon the actual exercise of the privilege, and is taxable whether or not the privilege is exercised.
If a real estate corporation should sell all of its holdings and distribute the proceeds to its stockholders, thus becoming a corporation without a business, it would still remain liable to taxation under section 182 until it took the necessary steps to become dissolved. This would not be because it was engaged in business but would be because the tax was imposed for the privilege of exercising the corporate franchise, and because its last actual status was that of a real estate corporation. It would seem to me, therefore, the State Tax Commission was entirely within the law in assessing the tax under section 182 that has been imposed here, and I, therefore, dissent from Justice McNamee’s opinion for annulment and vote to confirm the final determination of the State Tax Commission with fifty dollars costs and disbursements.
Determination annulled, with fifty dollars costs and disbursements.