(dissenting). The basic issues are sufficiently stated in the learned opinion of the Presiding Justice.
I entirely agree that a resale certificate is not per se a complete and absolute protection; and that a fraudulently procured resale certificate does not protect the vendor. But in this case there is *103no claim of fraud by the comptroller; indeed, any such contention is rejected.
In considering this appeal we must constantly keep in mind that this petitioner is not sought to be taxed by the comptroller as a taxpayer, but is sought to be held liable as an unpaid tax collector, a vendor, selling chemicals wholesale for alleged failure to collect from its vendees the tax in question on the ground that the vendor knew or in the exercise of reasonable care should have known that the chemicals were not sold for resale. It must also be remembered that if the articles sold are used in manufacturing processes in such manner that the articles become a physical component part of the manufactured product, no tax is imposed (Administrative Code, § N41-1.0, subd. 7). As can be easily imagined, physical determination of the ultimate result of the process in each case is very difficult and at times impossible of solution with certitude. However, any article so incorporated is regarded as being purchased for the purpose of resale and comes within the coverage of resale certificates.
The law makes the businessman, wholesaler, an unpaid tax collector who is personally liable to pay the taxes himself if he fails to collect when he should. This burden is placed upon the vendor although the city has a complete remedy against the vendee who has given a false resale certificate; in fact, to give a false certificate is a misdemeanor.
It is of course very difficult to show with certitude what the petitioner’s customers actually do or intend to do with the chemicals purchased. How far is a wholesaler bound to go? As a practical matter how can the wholesale vendor conduct an inquiry into its customer’s private business, namely, to find the actual ultimate use the product purchased is going to be put to in the future? Necessarily he must reasonably rely on his customer’s assertions and the customers here have made formal and legal assertions (in this case verified) by giving the resale certificates.
In this case concededly everyone who has given such resale certificates had been certified toy the City Treasurer as a vendor who could resell and collect the tax from somebody else.
We think, at least in cases such as this where no fraud is claimed, that the resale certificates plus the conceded subsequent inquiry by the wholesaler and reassurance by the customer should be sufficient to protect the wholesaler as unpaid tax collector from payment of the tax on the ground that he has failed to collect it. In our opinion any other interpretation *104imposes an almost intolerable burden on wholesale business in this community.
It should also be remembered that the doors to inquiry among the customers on whom the tax is really imposed are by law freely open to the comptroller. Without such inquiry, it may be that in some cases the customers have already paid the tax, and, if they did, the city is getting the tax twice (Matter of Fifth Ave. Bldg. Corp. v. Joseph, 297 N. Y. 278, 282).
Irrespective of its collection from its vendees, this vendor for the privilege of doing business here has to pay another and different tax, namely, a gross receipts tax. If it also has to pay as vendor the sales tax in question, it is forced, contrary to the enabling act which prohibits the city from collecting the tax twice from the same individual, to pay a sales tax on the same activities.
That the vendor’s chemical expert with regard to a number of the chemicals sold reported that such products did not become ingredients of products resold, is not conclusive. That was given merely as an opinion of the expert and neither he nor the comptroller canvassed the customers to find out what they actually did or intended to do with the chemicals; accordingly, such opinion would not be conclusively binding especially when the customers without any fraud by the vendor, gave the resale certificates.
Finally these transactions go back to 1942 and 1943, some of them to 1934 and 1935; and this appeal is being argued in October, 1953. After such long lapse of time, this vendor obviously now has no chance to get back from its vendees the taxes if it is now compelled to pay.
The vendor is not the taxpayer but is an uncompensated tax collector for the city. Especially in the case of wholesale vendors (the present petitioner sells the chemicals by the ton) the comptroller’s contention would place an intolerable burden on wholesale business unnecessarily clogging and interfering with its conduct in this community. In this as in every other tax case doubt should be resolved in favor of the taxpayer (Dun & Bradstreet v. City of New York, 276 N. Y. 198, 204). The enabling act as a law imposing a special tax is to be construed strictly against the taxing power and a clear case made out for its application (Socony-Vacuum Oil Co. v. City of New York, 247 App. Div. 163, affd. 272 N. Y. 668; Matter of Swift, 137 N. Y. 77, 87). In McLean v. Jephson (123 N. Y. 142, 146) a case involving a personal tax on persons doing business in the State of New York, the Court of Appeals unanimously held: *105“ There is no prerogative of the government which is more liable to abuse than that which authorizes it to seize and appropriate the property of the citizen for public purposes, and. none which is regarded with more jealous scrutiny by the courts. The authority of its officers to exercise the power of taxation has uniformly been carefully scrutinized and limited to the express warrant of the statute, and cannot be extended by implication or construction. This is especially the case where its demands may be enforced by fine and imprisonment, and it would be contrary to the traditions of our people, as well as to principles of justice and law, to permit the liberty of the citizen to be jeopardized by a strained and doubtful construction of the statute.”
In this case when petitioner received the resale certificates from its customers, with no fraud proved or even claimed, there was raised a rebuttable presumption that no tax was collectible on the sales (Sterling Bag Co. v. City of New York, 256 App. Div. 645, 648, affd. 281 N. Y. 269). Stated in another form, the general issue is whether petitioner was so delinquent in its tax collecting endeavors as to be subject to a penalty measured by the tax it failed to collect; and the strictly limited issue is the presence or absence of petitioner’s good faith in relying on the resale certificates. The circumstances in this case in our opinion show good faith on petitioner’s part and also establish the comptroller’s failure to rebut the rebuttable presumption flowing from resale certificates concededly given without any fraud on petitioner’s part.
Accordingly we dissent and vote to annul the tax, the equivalent of a penalty imposed on petitioner for failure to collect
Callahan and Breitel, JJ., concur with Peck, P. J.; Dore J., dissents and votes to annul, in opinion in which Bastow, J. concurs.
Determination confirmed, with $20 costs and disbursements to the respondent. [See post, p. 696.]