It is not wise to substitute complex factual distinctions for standards heretofore applied in determining local privilege taxation to foreign corporations engaged in interstate transactions. To do so threatens discriminatory and even arbitrary treatment of the many interstate corporations present in this State and city. Moreover, it would engender a new spate of privilege tax litigation resulting in an extended" period of uncertainty for tax collectors and taxpayers.
The Supreme Court of the United States, of course, delimits for the States the standards to be applied in determining local taxation of enterprises moving in interstate commerce. This it has done in many holdings applying the elaborated rationale of the Commerce Clause. If the existing standards have any validity, then the transaction of plaintiff corporation occurring in New York are interstate in character. And as such, they do not subject the corporation to local privilege taxation, however much the corporation may be subject to other forms of local taxation. On this view, the conclusion to this case is predetermined by Matter of United Piece Dye Works v. Joseph (282 App. Div. 60, affd. 307 N. Y. 780, cert, denied 348 U. S. 916_.
_If new standards are to be applied, and maybe they should, then the principles as expressed in the United Piece Dye Works case should be abandoned and the case frankly and explicitly overruled. The situation here cannot be distinguished from that in the United Piece Dye Works case under recent relevant standards. True, plaintiff has a more elaborate sales organization, with many more employees and many more executives in this State. There are also many elements of local supervision present, so cogently indicated in the majority opinion. Gener*261ally, then, plaintiff has a more extensive office and more personnel in this State — servicing sales, credit, design, limited production and inventory control, and claims — each associated generally with the solicitation of orders and sales of merchandise in the New York market from goods manufactured outside the State. (Nevertheless, even these New York incidents constitute but a minute portion of the widespread business operations of this large textile corporation — employing as it does 8,500 persons, and doing a business of over $74,000,000 in 1947.) On the other hand, in the United Piece Dye Works case, the taxpayer received 95% of its orders from the New York City market. But such quantitative analysis of sales activity is not the measure of localization of enterprise for purposes of privilege taxation (see Norton Co. v. Department of Revenue, 340 U. S. 534, particularly in the light of the separate dissents by Mr. Justice Reed and Mr. Justice Clark).
One circumstance present in this case and not present in the United Piece Dye Works case is that many of the agreements of sale were closed in this State. This circumstance alone has never been made a basis for local privilege taxation (see, e.g., Powell, “New Light On Gross Receipts Taxes”, 53 Harv. L. Rev., 909). Rather, the prime, albeit not the exclusive, "taxable event” has been the delivery — the transfer of possession— in the taxing State. And the facts here are quite clear that all deliveries were f.o.b. the seller’s out-of-State mills (McGoldrick v. Berwind-White Co., 309 U. S. 33). Should the Supreme Court eventually hold, as it well might, that the closing of the sales agreement standing alone is a proper standard for determining subjection to local privilege taxation the case would, of course, be on an entirely different bottom.
The decision of the Supreme Court in Field Enterprises v. State (352 U. S. 806) presents a problem. In that case there was no elaboration of the court’s reasoning. It is therefore impossible to say what was the Commerce Clause basis for the affirmance of the State judgment. Adding to the difficulties is that the affirmance was solely on an ex parte statement of jurisdiction filed, without argument, pursuant to rule 12 of the Rules of the Supreme Court of the United States. On this slender ex parte presentation barely outlining the issues, the Supreme Court affirmed, two Justices noting probable jurisdiction. In the Per Curiam opinion, only a few lines long, the court cited Norton v. Department of Revenue (supra). But this citation casts little light on the question with which the Supreme Court then and this court now is concerned. (At least one commentator has been similarly troubled, Strecker, “ ‘ Local Incidents ’ of Interstate Business ”, 18 Ohio St. L. J. 69.)
*262If in fact the affirmance in the Field case means that the Supreme Court adopted the views of the Supreme Court of the State of Washington, then, clearly, more is required here than distinguishing the facts in this case from those involved in the United Piece Dye Works case. For the fact complex in the Field case, if it had occurred here, would, under the rulings in this State, require a holding that Field Enterprises had never become localized sufficiently to allow local privilege taxation. The reverse would also be true: If the Field case affirmance means all that it potentially means, then the United Piece Dye Works ease was wrongly decided, despite the denial of certiorari by the Supreme Court.
Consequently, if the Field case is to be viewed as the city urges, then this court should simply overrule the United Piece Dye Works case. Such a result would allow the State and city to impose with rational uniformity local privilege taxation on all foreign corporations where the selling transactions are so extensive within the State as to amount to affording a “ local grip ’ ’ on the seller by the taxing unit. Then, too, the converse expression of the test might be whether the services provided in the local office were “ decisive factors in establishing and holding ” the local market (see Field Enterprises v. State, 47 Wn. [2d] 852, 856, affd. 352 U. S. 806; cf. Norton v. Department of Revenue, supra; United Piece Dye Works v. Joseph, supra, see dissenting opinion by Callahan, J., where this tenable view was forcefully taken, but rejected in this court and in the Court of Appeals).
Before, however, the State courts should effect so drastic a reversal of position, it would seem wiser to await clearer direction from the Supreme Court. In the light of the history of the Field case before the Supreme Court, there is not sufficient basis for erecting, in the State courts, an entirely new set of principles with economic and legal ramifications unexpressed, to be implied only at the peril of great economic and governmental uncertainty.
In view of the holding by the majority, and the view taken here, it is not necessary to discuss at any length the question raised as to the allocation formula and the remedy available. The question is novel and important. There is no authority to support the view that the statutory remedy is the exclusive one, as distinguished from being merely available, where the allocation formula is invalid. Assuming that the _ making _ of the allocation formula is the exercise of a quasi-legislative function by the comptroller it raises no different problem than one created by an unconstitutional statute. If that be so the *263plenary remedy would be available (see Mercury Mach. Importing Corp. v. City of New York, 1 A D 2d 337, 339, revd. on other grounds 3 N Y 2d 418 and the authorities cited therein). The statutory remedy would then fall with the statute as extended by the discriminatory formula and made invalid thereby.
Accordingly, I am constrained to dissent and vote to affirm the judgment and order granting plaintiff summary judgment and. to affirm the order denying defendants’ motion to dismiss the complaint for insufficiency.
Rabin and McNally, JJ., concur with M. M. Frank, J.; Breitel, J., dissents and votes to affirm in opinion, in which Botein, P. J., concurs.
Order and judgment reversed on the law, the motion of the plaintiff for summary judgment is denied and the cross motion of the defendants for a dismissal of the complaint is granted, with costs to appellants.
Settle order.