(dissenting). We dissent and would confirm the determination of the Finance Administrator.
In this article 78 proceeding the petitioner seeks to annul a determination of respondent Finance Administrator of the City *150of New York denying its application for a refund amounting to approximately $4,500. The tax was exacted and paid pursuant to City Utility Tax Law (Administrative Code of the City of New York, § Q41-1.0 et seq.) which provides for a tax of 1% of the gross operating revenues derived from the operation of omnibuses carrying more than seven persons operating wholely within the city limits. Concededly petitioner operates buses of this character and the refund sought represents a percentage of the 1% of its gross operating revenue which it paid.
The city’s right to impose such a tax is derived from section 20-b of the General City Law which allows cities to impose a tax such as is imposed by the State pursuant to section 186-a of the Tax Law, except that the rate of the city tax shall not exceed 1% of gross operating income. All of the provisions of section 186-a are made applicable with “ such modifications as may be necessary in order to adapt such taxes to local conditions ”.
From 1956 through 1959 there was in effect a statute known as subdivision 2-a of section 186-a of the Tax Law. This statute in regard to the State tax on bus revenues authorized an exclusion of $125,000 from the gross revenues for each quarter annual period. The refund here sought would give the petitioner the benefit of that exclusion. (This would normally be $15,000, but by virtue of limitations petitioner’s claim is concededly limited as indicated.)
The question, both from the standpoint of the amount involved and the fact that the exclusion was repealed in 1959 and hence the question cannot arise again, is more difficult than significant. Nevertheless it calls for decision. That question narrowly stated is: Does the limitation making all of the provisions of 186-a applicable to the authorization of taxing power to the city include the exclusion provided in former subdivision 2-a. At the outset it should be noted that the direction that the city tax be “ such as ” the State tax does not require the former to be a carbon copy of the latter. In fact there are differences such as that one directs quarterly payments and the other monthly, but no one predicates invalidity on that ground. When section 186-a and subdivision 2-a of section 186-a are considered together, the plain meaning is that the rate of tax shall be 2% less a certain rebate. The city tax limit is fixed at 1%. The difference in rate is specifically excepted in the requirement for similarity. ■A literal reading of the statutes does not mandate that the same rebate, which effects a change in rate, should be applied to the city tax.
*151Nor does the purpose and legislative history of subdivision 2-a of section 186-a. That statute was enacted following a recommendation from the Governor that it was a desirable assistance to small bus companies servicing towns in the State (see N. Y. State Legis. Annual, 1956, p. 433). A similar bill had been passed (L. 1955, ch. 843) allowing cities to give tax relief to bus operators at the city’s option. Surely this would indicate a legislative intent to restrict the rebate of subdivision 2-a of section 186-a to the State.
Cafozzoli and McGivern, JJ., concur with Nunez, J.; Steuer, J„ dissents in an opinion which Eager, J. P., concurs.
Determination annulled on the law, with $50 costs and disbursements, and refund in the sum of $4,583.36 granted.