J. C. Penney Co. v. Lewisohn

Capozzoli, J. (dissenting).

Pursuant to chapter 257 of the Laws of 1963 the State Legislature gave to the city the power ££ to adopt and amend local laws imposing in any such city a tax such as the legislature has or would have the power and authority to impose on persons occupying premises in such city for the purpose of carrying on or exercising any trade, business, profession, vocation or commercial activity ’ ’. This, in effect, gives to the city legislature the same power as the State Legislature in enacting a local law imposing the tax. (New York Steam Corp. v. City of New York, 268 N. Y. 137.) Accordingly, the city adopted title L of chapter 46 of the Administrative Code (Local Laws, 1963, No. 38 of City of New York). Subdivision 5 of section *70L46-1.Q which defines ‘ ‘ taxable premises ’ ’ states as follows: “ Any premises in the city occupied, used or intended to be occupied pr used for the purpose of carrying on or exercising any trade, business, profession, vocation or commercial activity, including .any premises so used even though it is used solely for the purpose of renting, or granting the right to occupy or use, the same premises in whole or in part to tenants ’ \

The apartments in question are used by petitioner to accommodate its out-of-town employees during their short periods of time when petitioner requires their presence in the city for commercial or business purposes. In fact, the majority concedes that the apartments “were unquestionably leased for business reasons and for commercial advantage ”.

Assuming an ambiguity in a tax statute, that statute must be strictly construed and doubts resolved in favor of the taxpayer. In this respect I concur in the majority conclusion. However, it must be remembered that: “ As a complement to the rule of strict construction, the principle that a tax statute should be interpreted as the ordinary person reading it would interpret it, should prevail (Matter of Business Statistics Organization v. Joseph, 299 N. Y. 443)”. (Matter of Wien v. Murphy, 28 A D 2d 222, 225-226.)

In considering the meaning of words, the test is that of common understanding. In Howitt v. Street & Smith Pub. (276 N. Y. 345, 351) the court said: “ A tax law should be interpreted as the ordinary person reading it would interpret it.”

I submit that the intent of the statute in question is very clear. There is no ambiguity. It is to tax rentals on all property used for business purposes and everybody seems to agree that these apartments were used for such purposes. Certainly, a corporation, as such, does not live in an apartment as does an ordinary human being. It is clear that the apartments were intended to be used by those serving the corporation in the furtherance of the corporation’s business. In fact, a rider to the lease has the following language: “ For the purposes of this lease, the words ‘ immediate family of the tenant ’ shall mean the employees, invitees and guests of tenant.”

As is stated in the majority opinion, the petitioner has deducted this rental expense in computing its Federal, State and city income taxes. This is an additional reason for supporting the action of the respondent.

For the reasons above given I conclude that the rents paid for the apartments are subject to the city’s Commercial Rent or Occupancy Tax.

*71Stevens, P. J., Markewich and Kupferman, JJ., concur with Murphy, J.; Capozzoli, J., dissents in an opinion.

Determination of the respondent, dated February 10, 1972, annulled, on the law, without costs and without disbursements.